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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


II 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mdthode  normale  de  filmage 
sont  indiqu^s  ci-dessous. 


□    Coloured  covers/ 
Couverture  de  couleur 

□    Covers  damaged/ 
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□    Coloured  pages/ 
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Pages  endommag^es 


□    Covers  restored  and/or  laminated/ 
Couverture  restaurde  et/ou  pelliculde 

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Le  titre  de  couverture  manque 


y 


Coloured  maps/ 

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□    Pages  detached/ 
Pages  d6tach6es 


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Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

□    Coloured  plates  and/or  illustrations/ 
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0Showthrough/ 
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□    Bound  with  other  material/ 
Reli6  avec  d'autres  documents 


□    Includes  supplementary  material/ 
Comprend  du  material  suppl^mentaire 


D 


D 


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along  interior  margin/ 

La  reliure  serree  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intdrieu^e 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout6es 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  dtait  possible,  ces  pages  n'ont 
pas  6t6  filmdes. 


□    Only  edition  available/ 
Seule  Edition  disponible 


D 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  h\h  film6es  A  nouveau  de  faqon  d 
obtenir  la  meilleure  image  possible. 


D 


Additional  comments:/ 
Commentaires  suppl6mentaires; 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmi  au  taux  de  reduction  indiqui  ci-dessous. 

10X  14X  18X  22X 


12X 


16X 


20X 


26X 


30X 


a4X 


28X 


n 

32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

National  Library  of  Canada 


L'exemplaire  film6  fut  reproduit  QiSce  d  la 
g6n6rosit6  de: 

Bibliothdque  nationale  du  Canada 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ►  {meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  images  suivantes  ont  6td  reproduites  avec  ie 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettetd  de  l'exemplaire  film6,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimde  sont  filmds  en  commenpant 
par  Ie  premier  plat  et  en  terminant  soit  par  la 
dernidre  page  qui  comporte  une  empreinte 
d'imprassion  ou  d'illustration,  soit  par  Ie  second 
plat,  selon  Ie  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmds  en  commenpant  par  la 
premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  Ie 
cas:  Ie  symbole  —^  signifie  "A  SUIVRE",  Ie 
symbols  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film6s  d  des  taux  de  reduction  diffdrents. 
Lorsque  Ie  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6,  il  est  filmd  d  partir 
de  Tangle  sup6rieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  Ie  nombre 
d'images  n^cessaire.  Les  diagrammes  suivants 
illustrent  la  mdthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

2 


< 


KKI.ATINfi   Tf> 


iTHE  TREATY  OF  WASHINGTON. 


AVOLUME  V/.-WASHINGTON  ARBITRATION 
km  GEiSERAL  APPENDIX. 


CONTAINING  THE  RliPORT  OF  ROBERT  S.  HALE,  AGENT  AND  COUNSEL  OF 
THE  UNITED  STATES  BEFORE  THE  C0M)1ISSI()N  ON  CLAIMS  OF  CITIZRNS 
OF  THE  UNITED  STATES  AGAINST  GREAT  BRITAIN,  AND  OF  SUB- 
JECTS OE-IIER  BRITAiNNlC  MAJESTY  AGAINST  THE  UNITED 
STATES,  UNDER  THE  TWELFTH  ARTICLE  OF  THE  TREATY 
OE  MAY  [{,  187 J,  BETWEEN  THE  UNITED  STATES 
AND  GREAT  BRITAIN;  AND  GENERAL  APPEN- 
DIX TO  PAPERS  RELATING  TO  THE        ,^ 

TREATY  OF  WASHINGTON.         ...^f^^  '  "^'""^  '"'^ 


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WASHINGTON: 

GOVERNMENT     PRINT  TNG     OFFICE. 

1874. 


R  E  P  0  R  T 


OF 


ROBERT  S.   HALE,   Esq. 


AOKXT   AND   COIXSKI,  OF 


THE   UNITED    STATES 

BEFORE  THE 

COMMISSION  ON  CLAIMS  OF  CITIZENS  OF  THE  UNITED  STATES  AGAINST 

GREAT   BRITAIN,  AND   OF   SUBJECTS  OF  HER  BRITANNIC 

MAJESTY  AGAINST  THE  UNITED   STATES,  UNDER 

THE  TWELFTH  ARTICLE  OF  THE  TREATY  OF 

8th  MAY,  1871,  BETWEEN  THE  UNITED 

STATES  AND  GREAT  BRITAIN. 


IH 


, 


LETTEll  OF  iMR.  HALE  TO  THE  SECRETARY  OF  STATE. 


OrriOE  OF  THE  Agent  of  the 
United  States  before  the  Mixed  Com:\iission 
ON  Ameuican  and  British  Claims, 
Washinf/ton,  J).  C,  yoi'cinher  30,  187.'3. 

Sir:  Iik submitting  the  accompanying  report  of  the  proceedings  and 
results  of  the  mixed  commission  under  the  twelfth  article  of  the  treaty 
between  the  United  States  and  Great  llritaiii  of  JMay  <S,  187 1,  I  beg  to 
express  my  profound  sense  of  obligation  to  yourself  for  the  uniform 
kindness  and  consideration  I  have  experienced  from  you  during  the 
Avhole  existence  of  the  commission. 

The  two  years  and  more  of  my  connection  with  the  commission  were 
years  of  severe  and  unremitting  labor.  The  nearly  five  hundred  claims 
presented  to  and  passed  on  by  the  commission  involved  an  immense 
range  of  investigation,  proofs,  and  arguments.  The  transactions  out  of 
Avhich  they  grew  extended  through  four  years  of  time,  and  involved  not 
only  inquiries  into  the  whole  history  of  the  late  war  in  its  operations  on 
laud,  but  also  a  large  extent  of  maritime  operations,  warlike  and  com- 
mercial, and  extensive  inquiries  into  the  transactions  between  the  hite 
so-called  Confederate  States  and  subjects  of  the  neutral  nations  of 
Europe. 

The  proofs  on  the  part  of  the  claimants  and  of  the  defence,  respect- 
iv^ely,  were  sought  through  the  archives  of  all  the  Departments  of  our 
own  Government,  as  well  as  those  of  the  late  confederate  government  in 
our  hands.  Testimony  of  witnesses  was  taken  on  notice,  and  either  on 
written  interrogatories  or  on  oral  examinations  by  counsel  attending  in 
person,  in  almost  every  State  and  Territory  of  the  United  States,  in  all 
the  British  provinces  of  INorth  America,  in  Mexico,  in  several  of  the 
West  India  Islands,  in  England,  Scotland,  and  IrelanJ,  and  in  Egypt 
This  testimony  was  taken,  in  all  the  cases  of  British  claims  against  the 
United  States,  either  by  special  counsel  sent  under  my  instructions  from 
Washington,  or  by  local  counsel  employed  in  the  vicinity  where  testi- 
mony was  to  be  taken.  In  each  of  these  cases  counsel  acted  under 
written  instructions  from  myself,  as  full  and  specific  as  a  careful  exam- 
ination of  each  case  could  enable  me  to  give. 

The  few  cases  of  American  claims  against  Great  Brit.iin  were  managed 
in  regard  to  testimony  and  arguments,  by  the  private  counsel  of  the 
claimants,  1  rendering  only  a  general  aid  and  supervision,  but  not 
assuming  the  responsibility  either  of  taking  the  proofs  or  preparing  the 
arguments. 


AMKRICAN-IIHITISH    CLAIMS    COMMISSION'. 


IJut  ill  tlie  claims  of  IJiitish  snbjocts  ji^ainst  tlie  IJnitetl  States,  in- 
volving about  00  per  wiit.  in  amount  of  the  entire  claims  before  the 
commission,  the  solo  control  and  responsibility  rested  upon  me. 

These  claims  involved  about  !i^!)<l,000,0()(),  ranjuing  through  an  almost 
infinite  variety  of  facts  and  circumstances  involved  in  the  support  of  or 
defence  against  the  claims.  The  claim  as  presented  by  the  chiimant  in 
his  memorial  and  proofs  often  gave  the  first  and  only  information  to  the 
(lovernmentol  the  existen(!e  even  of  the  claim,  and  involved  an  in(iuiry 
into  the  facts  of  the  case  through  very  circuitous  and  difticult  channels. 
In  such  (!ases  the  Government  always  stands  at  a  great  disadvantage  as 
against  privateclainmntSjWho  have  full  knowledge  of  all  the  circumstan(!es 

of  their  own  claims,  when  actual  and  bona  Ji<h,a\H\  of  the  j)roofs  by  which 
they  may  be  established,  and  who,  in  the  case  of  fraudulent,  simulated, 
or  excessive  claims,  have  facilities  in  the  numufacture  of  evidence  often 
very  dilHcult  to  be  exposed  or  rebutted  by  the  agents  charged  with  the 
defence  of  the  tlovernment,  and  acting  through  secondary  agents  often 
at  remote  and  almost  inaccessible  points. 

In  view  of  the  number  and  amount  of  the  claims  presented,  and  the 
importance  of  the  questions  to  bo  determined,  the  time  limited  by  the 
treaty  for  their  examination  and  decision  was  very  short.  Two  years 
for  the  complete  examination,  trial,  and  decision  of  all  these  cases,  nine 
months  of  Avhicli  time  was  allowed  (six  absolutely,  and  three  under 
limitation)  for  the  presentation  of  the  claims  by  the  claimant,  constituted 
a  shorter  time  than  should  have  been  taken  for  the  thorough  and  satis- 
factory examination  of  all  the  cases. 

The  fact  that  in  this  scanty  time  the  Government  was  enabled  to 
make  the  examination  and  trial  of  the  cases  as  thorough  as  it  was  made, 
and  to  arrive  at  results  so  satisfactory,  is  certainly  a  subject  of  congrat- 
ulation, the  awards  made  by  the  commission  against  the  United  States 
amounting  to  only  about  two  per  cent,  of  the  claims  presented  to  the 
commission  against  them. 

The  entire  expense  of  the  commission  incurred  by  the  United  States, 
including  compensation  of  commissioners  and  ofRcers  of  the  commission, 
of  the  agent  and  counsel  before  the  commission  and  his  assistants  and 
clerks,  of  counsel,  agents,  commissioners,  witnesses,  &c.,  in  taking  tes- 
timony, and  also  printing  and  incidental  expenses,  has  been  about 
$300,000,  of  which  amount  about  $50,000  will  be  reimbursed  by  the  de- 
duction from  the  amount  of  the  awards,  pursuant  to  article  XVI  of  the 
treaty.  All  the  memorials,  evidence,  and  arguments  were  printed  for 
the  use  of  the  commission,  the  expense  of  printing  being  borne  jointly 
and  equally  by  the  two  goveruments.  The  entire  printed  matter  thus 
submitted,  and  now  collated  and  bound,  makes  up  seventy-four  octavo 
volumes,  averaging  about  800  pages  each. 

In  an  early  case  before  the  commission,  involving  the  question  of  the 
effect  of  domicile  witliin  the  United  States  upon  subjects  of  Great 
Britain,  by  paramount  allegiance,  domiciled  within  the  United  States, 


AdKNTS    UKPOIJT. 


Stnti's,  iii- 
lu'l'oie  the 
ne. 

1  iin  iilniosf 
pport  of  or 
^liiimaiit  ill 
itioii  to  tlic 
an  iiuiniry 
t  channels, 
vantage  as 
lunistaneos 
sby  whifh 
sinnihited, 
ence  often 
d  witli  the 
ents  often 

1,  and  the 
ed  by  the 
Two  years 
sasea,  nine 
ree  under 
instituted 
and  satis- 

nabled  to 
ras  made, 
con  grat- 
ed States 
ed  to  tlie 

(1  States, 
amission, 
ants  and 
king  les- 
m  about 
)y  the  de- 
I  of  the 
in  ted  for 
e  jointly 
tter  thus 
ir  octavo 

)n  of  the 

)f  Great 

States, 


Hon.  I'ibenezcr  Kockwood  Hoar,  of  IVrasHaehusetts,  was  retained  by  the 
(lovernment  at  my  recjuest  as  associate  counsel,  iuul  liled  a  very  learned 
and  valnabhi  argument.  In  a  few  other  cases,  not  exceeding  fifty  in  all, 
I  was  assisted  in  the  preparation  of  arguments  by  (len.  iJenjamin  S. 
Roberts  and  by  A[essrs.  Edwin  L.  Stanton  and  A.  S.  Worthington,  of 
Washington,  whose  services  were  faithfully  rendered  and  were  very 
valuable.  With  these  exceptions  the  argunu'uts  in  all  the  British  cases 
were  prepared  solely  by  myself. 

In  the  taking  of  testimony  a  large  number  of  ( ounsel  and  agents 
N.ere  employed,  under  my  supervision,  in  the  localities  where  testimony 
was  taken  as  above  related.  Among  those  who  have  rendered  faithful 
and  eflicient  service  in  this  way,  I  deem  it  not  invidious  to  mention 
Messrs.  Kortre(!ht,  Craft  &  Scales,  of  Memphis,  Tenn. ;  Messrs.  M.  A. 
Dooley  and  AVilliani  (J.  Hale,  of  New  Orleans,  La.;  Franklin  H. 
Churchill,  esq.,  of  Xew  York  City,  lion.  I).  H.  Chamberlain,  of  Colum- 
bia, S.  C;  Marcus  Doherty,  es(j.,  of  Montreal,  P.  Q.,  Canada;  Hon.  An- 
drew Sloan,  of  Savannah,  Ga.;  Horatio  1).  W^ood,  es(j.,  of  Saint  Louis, 
Mo.;  Frederick  C.  Hale,  esq.,  of  Chicago,  111.;  ]Messrs.  Si)eed  &  Buck- 
ner,  of  Louisville,  Ky.;  Messrs.  Bra<lley  &  Pea  body,  of  Nashville,  Tenn. ; 
and  General  II.  B.  Titus,  of  Washington,  I).  C. 

Thomas  II.  Dudley,  es<i.,  late  consul  of  the  United  States,  at  Liver- 
pool, and  Joseph  Nunn,  esq..  United  States  vice  consul-general  at  Lon- 
don, also  contributed  largely,  by  their  knowledge  of  the  different  cases, 
and  their  diligence  and  assiduity  in  inquiry  ami  report  upon  the  claims, 
to  the  successful  defense  of  the  United  States  against  many  of  the  prize 
cases. 

In  this  connection,  too,  I  should  not  fail  to  make  mention  of  the  dili- 
gence, skill,  and  assiduity  of  Mr.  Kdward  Hayes,  n)y  stenographic  clerk, 
during  the  whole  period  of  my  agency*. 

In  conclusion,  I  cannot  forbearthe  expression  of  my  great  satisfaction 
with  the  working  of  the  commission,  its  performance  of  its  arduous 
duties,  and  the  result  of  its  labors.  The  thanks  of  both  governments 
will  undoubtedly  be  fully  expressed  to  the  individual  commissioners. 

My  personal  acknowledgments  are  especially  due  to  his  excellency  Count 
Corti,  the  presiding  commissioner,  for  the  marked  and  unfailing  courtesy, 
kindness,  and  consideration  which  I,  in  common  with  every  other  perswi 
connected  with  the  commission,  received  from  him  throughout  the  whole 
period  of  our  official  intercourse.  The  wide  knowledge  of  public  law, 
the  sterling  good  sense  and  judgment  in  its  application  to  the  fticts  of 
individual  cases,  the  untiring  labor  bestowed  in  the  investigation  alike 
of  facts  and  principles,  and  the  able,  diligent,  and  conscientious  appli- 
cation of  his  powers,  attainments,  and  labors  to  the  examination  and 
decision  of  the  cases  before  the  commission,  merit  recognition  and 
acknowledgment  from  the  governments  so  largely  indebted  to  him  for 
the  satisfactory  disposition  of  the  numerous  vexed  questions  between 


0  ami:kic'AN-mi  iTisii  claims  commission. 

them  submitted  to  the  {uhitnimoiit  of  himsiiiraiul  his  colleagues,  to  an 
extent  to  wliieh  these  expressions  of  miue  do  seant  and  feebh^jtistiee. 

Mr.  Justice  Frazer,  the  eommissioner  named  by  tiie  IMesidt'iit  of  th«' 
United  States,  by  his  ability,  impartiality,  urbanity,  and  diligenee,  fully 
justified  the  wisdom  of  the  Pnvsident's  selection  .nnd  the  expcictations  of 
those  previously  ac(piainted  Mith  his  judicial  abilities  and  career. 

1  bey,  also,  to  express  my  profound  appreciation  of  the  dilijjence, 
faithfulness,  and  ability  exhibited  by  ]\Ir.  Jloward,  Her  Majesty's 
a}?ent,  and  by  JNFr.  Carlisle,  Her  Majc^sty's  counsel,  in  the  management 
of  the  cases  before  the  commission  on  behalf  of  the  llritish  'government, 
and  to  acknowle<l}j;e  niy  personal  oblioations  to  each  of  those  yeutlenu'n 
for  their  unfailing^  courtesy  and  fairness. 

I  have  the  honor  to  be,  very  resi)ectfully,your  obedient  servant, 

KOr,:  S.lIALi:, 
Af/ent  of  the  Viiited  {^tatvHy  At: 
lion.  Hamilton  Fish, 

Secretary  of  State. 


1 


I 


I> 


Hiios,  to  illl 
le  Justict?. 
dent  of  tlu' 
?(MU'o,  fully 
ictations  of 
roer. 

5  (lilig«!iice, 
■  Miijesty's 

lillliiyOIIKMit 

ivormnent, 
^tMitloinei) 

t  servant, 

'tates,  cOf. 


K 


r :  p  (j>  li  T 


To  the  llonordbk  llnmUion  Fish,  Secretary  of  State: 

The  niHlorsigiu'd,  a<,'(Mit  of  tlio  IJnltod  Stnttvs  before  the  ooinmission 
upon  the  chiims  of  subjects  of  Her  Britannic  Majesty  aj^ainst  the  United 
►States,  and  of  citizens  of  the  United  States  against  (Jreat  Britain, 
established  by  the  twelfth  article  of  the  treaty  between  the  United  States 
and  (Jreat  Britain  of  Sth  ^lay,  1871,  respectfully  submits  the  following 
report  of  the  procee<lings  and  results  of  that  commission  : 

Articles  12  (o  17,  inclusive,  of  the  treaty  above  referred  to,  contain  the 
provisions  establishing  the  commission  and  regulating  its  jurisdiction, 
powers,  and  methods  of  proceeding.  Thoae  articles  are  found  in  tbo 
ai)pendix  to  this  rei)ort,  A. 

The  Ilonorablo  James  Somerville  Frnzcr,  of  the  State  of  Indiana, 
i'ormerly  a  justice  of  the  supreme  cj  irt  of  that  State,  was  named  as 
commissioner  by  the  President  of  the  United  States. 

Tne  Right  Elouor.ible  Bussell  Gurney,  meiiU)er  of  Parliament,  member 
of  Her  Majesty's  privy  council,  and  recorder  of  London,  was  named 
as  commissioner  by  Her  Britannic  Majesty. 

Count  Louis  Corti,  envoy  extraordinary  and  minister  idenipoten- 
tiary  to  the  United  States  of  His  Majesty  the  King  of  Italy,  was  named 
as  the  third  commissioner  by  the  President  of  the  United  States  and 
Her  Britannic  Majesty  conjointly. 

liobert  Sallbrd  Hale,  esq.,  of  the  State  of  New  York,  was  named  by 
the  President  of  the  United  States  agent  of  the  United  States  to  attend 
the  commissioners,  to  present  and  support  claims  presented  on  behalf 
of  his  Government,  to  answer  claims  made  upon  it,  and  to  represent 
it  generally  in  all  matters  connected  with  the  investigation  and  decision 
of  such  claims,  pursuant  to  the  provisions  of  the  thirteenth  article  of 
the  treaty.  Mr.  Hale  acted  also  as  counsel  for  the  United  States  under 
the  same  article. 

Henry  Howard,  esq.,one  of  Her  Britannic  Majesty's  secretaries  of  lega- 
tion at  Washington,  was  named  by  Her  Majesty's  government  as  the 
agent  of  that  government  for  the  like  purposes,  pursuant  to  the  same 
article. 

James  Mandeville  Carlisle,  esq.,  of  the  city  of  Washington,  U.  S.  A., 
was  employed  as  the  counsel  of  Her  Britannic  Majesty's  government 
before  the  commission. 

The  commissioners  and  agents  and  counsel  above  named  continued  in 
the  execution  of  their  respective  duties  to  the  close  of  the  commis- 
sion. 


8 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


Tbe  cuminissioii  first  met  and  oig.inized  at  Wasbingtou  on  the  2Gtli 
day  of  September,  1871,  each  of  the  commissioners  making  and  sub- 
scribing the  "  solemn  declaration  "  provided  by  the  twelfth  article  of  the 
treaty. 

.  Count  Corti  was  requested,  by  vote  of  the  commission,  to  preside 
during  its  deliberations,  and  continued  to  act  as  presiding  commissioner 
during  the  entire  existence  of  the  commission. 

Thomas  Campbell  Cox,  esq.,  of  the  District  of  Columbia,  U.  S.  A., 
was  duly  appointed  by  the  commission  as  its  secretary,  and  continued 
to  act  as  such  to  the  close  of  the  commission. 

The  commission,  at  an  early  session,  adopted  rules  for  the  course  of 
proceedings  before  it,  including  the  manner  of  presentation,  prosecu- 
tion, and  defense  of  claims,  the  taking  of  testimony,  and  the  printing 
and  presentation  of  the  evidence  and  arguments,  a  copy  of  which  rules, 
with  such  slight  modifications  as  were  from  time  to  time  afterward 
adopted,  is  found  in  the  appendix,  B. 

Within  the  time  limited  by  the  treaty',  nineteen  claims  were  i')re- 
sented  on  the  part  of  citizens  of  the  United  States  against  Great  Brit- 
ain, aggregating,  exclusive  of  interest,  a  little  less  than  $1,000,000. 
These  claims,  as  will  be  seen  by  the  detailed  report  hereinafter  given, 
were  all  disallowed  by  the  commission. 

Within  the  sametiaie  were  presented  four  hundred  and  seventy-eight 
claims  of  subjects  of  Her  Britannic  ]\Iajesty  {igainst  the  United  States, 
aggregating,  <^xclusive  of  interest,  about  $60,000,000,  and,  including  in- 
terest for  the  average  time  allowed  by  the  commission,  about  $90,000,000. 
Of  these  claims,  one  was  dismissed  by  the  commission  on  account  of  in- 
decorous and  improper  language  used  in  the  memorial,  without  preju- 
dice to  the  filing  of  a  new  memorial,  which  was  subsequently  filed ; 
thirty  were  dismissed  as  not  within  the  jurisdiction  of  the  commission  ; 
two  hundred  and  fifty-eight  were  disallowed  on  the  merits j  eight 
were  withdrawn  by  Iler  Britannic  JMajesty's  agent,  by  leave  of  the  com- 
mission ;  and  in  one  hundred  and  eighty-one,  awards  were  made  in 
favor  of  the  claimants  respectively  against  the  United  States,  such 
aAvards  aggregating  $1,029,819. 

The  entire  amount  of  the  awards  against  the  United  States,  includ- 
ing interest,  allowed  by  the  commission  was,  therefore,  as  will  be 
seen,  a  trifle  over  two  per  cent,  of  the  entire  claims  i)resented  to  the 
commission,  on  behalf  of  British  subjects,  against  the  United  States, 
inclmling  interest. 

Of  the  claims  of  citizens  of  the  United  States  against  (Ireat  Britain, 
twelve  grew  out  of  the  Saint  Albans  raid,  so  called,  and  were  for  acts 
of  plunder  alleged  to  have  been  committed  by  confederate  soldiers  in 
the  town  of  Saint  Albans,  Vt.,  in  October,  1801 ;  one  was  for  a  like 
raid  of  confederate  soldiers  alleged  to  have  been  committed  upon  Lake 
Erie  in  September,  1801,  and  for  injuries  to  the  American  steamers 
Philo  Parsons  and  Island  (ineen,andthe  property  of  American  citizens 
on  board  said  steamers;   four  were  for  damages  by  reason  of  the  al- 


s 


AGENTS    RKPOKT. 


0 


the  20th 
and  sub- 
tide  of  the 

to  preside 
amissiouer 

U.  S.  A., 
continued 

course  of 
I,  prosecn- 
B  printing 
lich  rules, 
afterward 

were  pre- 
reat  Brit- 
1,000,000. 
ter  given, 

suty  eight 
sd  States, 
ludingin- 
0,000,000. 
tint  of  in- 
)ut  preju- 
tly  filed; 
imission ; 
its;  eight 
the  com- 
made  in 
tcs,  such 

s,  includ- 

wili   be 

d  to  the 

1  States, 

Britain, 
I  for  acts 
Idiers  in 
or  a  like 
on  Lake 
iteaniers 

citizens 
f  the  al- 


leged det(!ntion  of  vessels  laden  with  saltpetre  at  Calcutta,  in  January 
and  Fobruary,  1862,  under  ordinances  of  the  governor-general  of  India 
prohibiting  the  exportation  of  saltpetre;  one  was  for  alleged  injuries 
to  the  property  of  the  claimant  on  the  island  of  San  Juan,  in  Washing- 
ton Territory,  U.  S.  A.,  in  1862  and  1804,  by  the  alleged  act  or  i)ro- 
curement  of  the  commander  of  the  British  forces  on  that  island,  during 
the  joint  military  occupation  of  the  same  by  the  United  States  and  Great 
Britain,  under  a  convention  between  them  for  that  purpose  ;  and  one 
was  for  a  royalty  claimed  to  be  due  to  the  claiiii;u>t  from  the  liritish 
government  by  reason  of  the  adoption  and  use  by  that  gov  <'inment 
of  a  certain  invention  of  the  claimant,  a  citizen  of  the  United  States,  for 
the  improvement  of  breech-loading  fire-arms. 

Of  the  four  hundred  and  seventy-eight  Britisli  claims  presented,  two 
hundred  and  fifty  nine  covered  claims  for  property  of  liritish  subjects 
alleged  to  have  been  taken  by  the  military,  naval,  or  civil  authorities  of 
the  United  States  and  appropriated  to  the  use  of  the  Government  of 
those  States;  one  hundred  and  eighty -one  covered  claims  for  property 
of  liritish  subjects,  alleged  to  have  been  destroyed  by  the  military  ana 
naval  forces  of  the  United  States ;  seven  covered  claims  for  property  of 
British  subjects  alleged  to  have  been  destroyed  by  the  rebel  or  confed- 
erate forces  carrying  on  war  aguiust  the  United  States;  one  hundred 
covered  claims  for  damages  by  reason  of  the  alleged  unlawful  arrest 
and  imprisonment  of  British  subjects  by  the  authorities  of  the  United 
States;  seventy-seven  covered  claims  for  tlamages  by  reason  of  the 
alleged  unlawful  capture  and  condemnation  or  detention  of  British  ves- 
sels, their  cargoes,  &c.,  as  prize  of  war  by  the  naval  lbr<;es  and  civil 
authorities  of  the  United  States  ;  three  covered  claims  for  damages  by 
reason  of  the  alleged  unlawful  warning  oft"  of  British  vessels  from  the 
coasts  of  the  States  in  rebellion  by  the  United  States  cruisers,  in  the 
absence  of  any  lawful  blockade  of  the  coasts  and  i)orts  from  which  the 
vessels  were  so  warned  ;  and  thirty-four  covered  (;Iaims  of  miscellaneous 
character. 

Many  of  the  memorials  singly  included  claims  coming  under  two  or 
more  of  the  classes  above  nanied,  a  fact  which  explains  the  excess  of 
the  sum  of  the  ditferent  classes  above  named  over  the  entire  number  of 
memorials  filed. 

A  schedule  of  the  Ameriinin  and  British  claims,  respectively,  in  their 
order  as  filed  and  numbered,  showing  the  naujes  of  the  «'.laimants,  the 
nature  of  their  respective  claims,  and  the  time  and  place  where  they 
arose,  the  amounts  clsiimed,  and  the  final  disposition  of  the  same,  will  be 
found  in  the  appendix,  C  This  schedule  is  accompanied  by  aii)habet- 
ical  indexes,  giving  separately  the  names  of  the  citizens  of  the  United 
States  claimants  against  Great  Britain,  and  of  the  subjects  of  Her  Bri. 
tannic  Majesty  claimants  against  the  United  States,  with  relerenee  to 
the  number  designating  the  claim  of  each  person  ;  and  also  by  another 
alphabetical  index  referring  to  the  vessels  in  resi)ect  of  which  damages 


10 


AMERICAN-IJRITISn    CLAIMS    COMMISSION. 


: 


wero  claimed,  and  tlio  nuinbors  of  the  cases  in  winch  such  claims  were 
made. 

The  commission  continued  its  sessions  in  the  city  of  Washington  from 
the  day  of  its  first  meeting,  with  adjournments  from  ti.ae  to  time,  down 
to  the  10th  day  of  May,  1873;  on  which  day,  under  the  authority  of  a 
supplemental  article  to  the  treaty  concluded  between  the  two  govern- 
ments, and  authorizing  the  sessions  of  the  commission  elsewhere  than 
in  the  city  of  Washington,  it  adjourned  to  meet  at  Newport,  in  the  State 
of  llhode  Island,  on  the  third  day  of  June  following.  On  the  last- 
named  day  it  again  met  at  Newport,  and  continued  its  sessions  with- 
out interruptioii,  except  by  adjournments  from  day  to  day,  until  the  25tli 
day  of  September,  1873.  On  the  last-named  day,  having  finally  de- 
cided and  disposed  of  every  c.aim  pending  before  it  within  the  time 
limited  by  the  treaty,  the  commission  made  and  signed  in  duplicate 
its  final  award,  signed  by  all  the  commissioners,  a  copy  of  which  will  be 
found  in  the  appendix,  D. 

Separate  awards  in  duplicate  were  made  and  signed  by  the  commis- 
sioners, in  respect  of  each  claim  finally  passed  upon  by  them,  as  the 
cases  were  respectively  disposed  of. 

The  duplicate  original  final  awards,  as  well  as  the  duplicate  original 
individual  awards  iu  the  case  of  ench  claimant,  were  delivered  by  the 
commission,  through  its  secretary,  to  the  respective  gov^ernmeuts, 
together  with  duplicate  journals  of  the  entire  proceedings  of  the  com- 
mission, kept  by  the  secretary  and  certified  from  day  to  day  by  the  pre- 
siding commissionei*. 

The  entire  uumb'^r  of  cases,  American  and  British,  decided  by.  the 
commission  (after  deducting  the  eight  claims  withdrawn  by  Her  Majes- 
ty's agent)  was  four  hundred  and  eighty-nine.  All  the  commissioners 
united  in  the  awards  in  three  hundred  and  seventy-two  cases;  in 
ninety  seven  cases  the  awards  were  signed  by  Count  Corti  and  Mr, 
Commissioner  Gurney  only,  Mr.  Commissioner  Frazer  dissenting;  and 
in  twenty  cases  the  awards  were  signed  by  Count  Corti  and  Mr.  Commis- 
sioner Frazer  only,  Mr.  Commissioner  Gurney  dissenting. 

In  the  following  pages  I  have  attempted,  to  the  best  of  my  ability,  to 
report  the  various  principal  questions  which  arose  before  the  commission, 
giving  a  succinct  statement  of  the  allegations  and  proofs  of  the  respect- 
ive parties  upon  such  questions,  the  arguments  by  which  the  respect- 
ive claims  were  supported  and  oi)po8ed,  the  authorities  cited  by  the 
respective  counsel,  and,  as  far  as  practicable,  the  principles  established 
by  the  respective  decisions  of  the  commission.  In  but  a  very  small 
proportion  of  the  whole  number  of  cases  decided  were  the  grounds  of 
the  dcisiou  stated  in  the  record  or  by  written  opinions  of  the  several 
commissioners.  Wherever  the  grounds  of  the  decision  appear  in  the 
record  itself,  I  have  carefully  given  the  language  of  the  record. 

Mr.  Commissioner  Frazer  h.is  kindly  furnished  me  with  copies  of  a 
few  opinions  pronounced  by  him  before  the  commission,  some  of  them 


I 


AGENTS    KEPOKT, 


11 


ilaiiiis  \v«re 

ngton  frotn 
tiino,  down 
lority  of  a 
vo  goveru- 
vliere  than 
n  the  State 

the  last- 

sions  with- 

til  the  25th 

finally  de- 

u  the  time 

dni)licate 
lich  will  be 

be  com  mis- 
em,  as  the 

te  original 
jred  by  the 
vernmeuts, 
)f  the  corn- 
by  the  pre- 

led  by.  the 
Her  Majes- 
missiouers 
cases;  in 
ii  and  Mr 

• 

I  ting;  and 
r.  Com  mis- 
ability,  to 
)mmission, 
le  respect- 
le  respect. 
:ed  by  the 
stablished 
ery  small 
grounds  of 
le  several 
!ar  in  the 
J. 

opies  of  a 
B  of  them 


' 


expressing  the  views  of  the  commission,  or  a  majority  of  it,  and  others 
dissenting  opinions  in  cases  in  which  his  views  were  overruled  by  his 
associates  upon  the  commission,  I  have  deemed  these  opinions  of  either 
class  worthy  of  preservation,  and  have  accordingly  inserted  them  either 
in  the  bo«ly  of  my  report  under  the  respective  cases  in  which  they  were 
delivered,  or  in  the  appendix.  A  very  lew  written  opinions  arc  under- 
stood to  have  been  delivered  by  Count  Corti  and  by  Mr.  Commissioner 
(lurney,  copies  of  which  I  regret  that  1  have  been  unable  to  obtain  for 
publication  with  this  report. 

I  proceed  to  consider  the  various  principal  questions  which  arose  iiLd 
were  disposed  of  before  the  commission  in  their  order.  * 

T.-.IUiaSDICTION  AS  TO  THE  PEKSOX. 

Various  questions  as  to  the  jurisdiction  of  the  commission,  in  res[»ecb 
both  of  the  persons  entitled  to  a  standing  as  claimants  under  the  treaty 
and  to  the  subject-matter  of  the  claims,  arose  and  were  disposed  of  in 
the  course  of  the  proceedings.  These  questions,  so  far  as  relates  to  the 
jurisdiction  of  the  commission  as  to  the  persons  entitled  to  claim  under 
the  treaty,  may  be  summed  up  as  follows  : 

1.  The  question  early  arose  in  several  cases  as  to  the  sense  in  which 
the  respective  expressions  "citizens  of  the  United  States"  and  "sub- 
jects of  Her  Britannic  Majesty"  were  used  in  the  treaty.  Tl  is  question 
was  raised  by  demurrer  in  several  of  the  early  cases,  and  was  argued  at 
length  in  the  case  of  Anthony  Barclay  t'.s'.  The  United  States,  No.  5. 

This  claim  was  brought  for  the  alleged  taking  and  destruction  of  and 
injuries  to  real  and  personal  property  of  the  claimant,  situated  near 
Savannah,  by  the  army  of  General  Sherman,  in  December,  1864.  The 
memorial  alleged  the  claimant  to  have  been  a  native-born  subject  of 
Her  Britannic  Majesty,  but  to  have  been  domiciled  for  many  years  prior 
to  the  year  1858  within  the  United  States,  a  portion  of  that  time  as 
Her  Majesty's  consul  in  the  city  of  New  York,  and  from  that  time  for- 
ward to  the  end  of  the  war  a  resident  of  Chatham  Count}',  Georgia. 

A  demurrer  was  interposed  to  the  claim  on  the  ground,  among  others, 
that  "the  claimant,  having  been  at  the  time  of  the  alleged  acts  domi- 
ciled and  engaged  in  trade  and  business  within  the  enemy's  country, 
cannot  claim  the  position  of  a  subject  of  Her  Britannic  Majesty  within 
the  twelfth  article  of  the  treaty." 

Under  this  demurrer,  the  counsel  for  the  United  States  contended 
that,  under  the  twelfth  article  of  the  treaty,  the  terms  "citizens  of  the 
United  States"  and  "subjects  of  Her  Britannic  Majesty"  were  to  be 
taken  not  in  their  strict  meaning,  under  municipal  law,  of  absolute  citi- 
zenship for  all  purposes,  or  of  paramount  allegiance  to  a  sovereign,  but 
in  the  larger  sense  recognized  by  international  law,  in  which  sense  it 
was  contended  that  all  persons  were  included  within  those  respective 
expressions  who  by  i)ernuinent  domicile  were  within  the  protection  of 


12 


AMERICAN-HKITISH    CLAIMS    COMMISSION. 


the  government  under  which  they  resided,  and  who  thereby  owed  to  the 
country  of  thei"  domicile  that  allegiance,  perhaps  temporary  and  quali- 
fied, exjicted  by  such  domicile.  In  other  words,  it  was  contended  that 
within  the  terms  of  the  treaty  all  persons  permanently  domiciled  within 
the  United  States  were  to  be  taken  as  citizens  of  the  United  States, 
and  all  persons  permanently  domiciled  within  the  jurisdiction  of  Great 
Britain  were  to  be  taken  as  subjects  of  Her  Britannic  Majesty. 

The  counsel  for  the  United  States  cited  in  support  of  this  doctrine 
the  following  elementary  writers:  Twiss'  Law  of  Nations,  (war,^  233, 
298-0;  id.,  82,  83;  3  Phillimore,  G03 ;  1  Kent's  Com.,  74 ;  2  id.,  03;  Law- 
rence's Wheaton,  557  to  5()7  ;  Calvo's  Derecho  Internaeional,  526  to 
530;  Ilalleck,  702,  705,  717  ;  3  Greenleaf's  Ev.,  §  239;  Story's  Conflict  of 
Laws,  §  08. 

He  cited,  also,  from  the  British  and  American  reports  in  admiralty  and 
prize  cases,  the  following:  The  Indian  Chief,  3  Rub.,  12,  22;  The  Citto, 
id.,  38 ;  The  Harmony,  2  id.,  322 ;  The  Bernon,  1  id.,  102 ;  The  Xoyade, 
4  id.,  251 ;  The  Danous,  id.,  255,  w.;  The  President,  5  id.,  227 ;  The  Anna 
Katherina,  id.,  107 ;  The  Matchless,  1  Hagg.  Adm.,  97 ;  The  Schooner 
Nancy,  Stewart's  Hep.,  (Nova  Scotia,  Vice- Admiralty,)  40;  The  Pizarro,2 
AVheat.,  227  ;  The  Charming  Betsey,  2  Cranch,  04 ;  Tha  Venus,  8  id.,  253  ; 
The  Francis,  1  Gall., 314 ;  The  Ann  Green,  id.,  274 ;  Tiie  Joseph,  id.,  545j 
508 ;  Mrs.  Alexander's  Cotton,  2  Wall.,  417 ;  The  Venice,  id.,  274 ;  The 
Peterhotf,  5  id.,  GO. 

Also,  from  the  coii'mon-law  reports :  IVIarryatt  r.s.  Wilson,  (in  Ex.  Ch.,) 
1  B.  &  P.;  S.  C,  (in  Kings  Bench,)  8  T.  K.,  31 ;  McConnell  vs.  Hector, 
3  B.  &  P.,  113;  Tabbs  vs.  Bendelack,  id.,  207,  ».;  Bell  vs.  Keid,  1  Maule 
&  Selwyn,  720  ;  Albretcht  vs.  Sussman,  2  Vesey  «&  Beames,  322. 

Also,  from  the  British  Privy  Council  cases,  on  questions  arising  under 
the  treaty  of  1814  between  Great  Britain  and  France;  The  Countess  of 
Conway's  case,  2  Knapp  P.  C.  Rep.,  304  ;  Drummond's  case,  2  id.,  205. 

He  also  cited  the  case  of  the  Messrs.  Laurent,  decided  by  the  umpire, 
^Ir.  Joshua  Bates,  under  the  convention  of  8th  January,  1853,  between 
the  United  States  and  Great  Britain,  given  in  the  report  of  the  com- 
missioners under  that  convention.  Senate  documents,  tirst  and  second 
sessions.  Thirty-fourth  Congress,  vol.  15,  No.  103,  p.  120. 

Also,  the  decisions  of  the  commissioners  under  the  treaty  of  Guada- 
pipe-Hidalgo,  2d  February,  1848,  between  the  United  States  and  Mexico, 
in  the  cases  of  Clow,  Powell,  Cook,  Haggerty,  Davis  &  Co.,  and  Bark- 
ley,  administrator,  in  manuscript  in  the  State  Department. 

Also,  the  correspondence  of  the  British  foreign  office,  relating  to  the 
cases  of  Kirby,  Smith,  Rothschild,  Ashburnham,  Stewart,  and  others, 
printed  in  the  British  Blue  Book  of  1871,  Paper  No.  4,  on  the  Franco- 
German  war. 

Also,  from  the  parliamentary  debates,  the  speeches  cT  Lord  l\ilmer- 
Rtotj,  Hansard,  third  series,  vol.  140,  p.  41 ;  of  Sir  Richard  Bethell,  id., 
40;  and  of  Lord  John  Russell,  id.,  50,  on  the  Grey  town  case.    Also,  the 


AGENTS    REPORT. 


15 


owed  to  the 
y  and  quali- 
tended  that 
;iled  within 

ited  States, 
on  of  Great 

ty. 

lis  doctrine 
(war,^  233, 
1.,  G3;  Law- 
iial,  526  to 
I  Conflict  of 

niralty  and 
The  Citto, 
le  Noyade, 
The  Anna 
e  Schooner 
3  Pizarro,2 
,  8  id.,  253  ; 
h,  id.,  545, 
,274;  Tlie 

u  Ex.  Ch.,) 

vs.  Hector, 

d,  1  Maule 

22. 

iinj^  nnder 

ountess  of 

id.,  205. 
le  n  in  pi  re, 
J,  between 

the  com- 
rid  second 

af  Guada- 
d  Mexico, 
md  Lark- 
ing to  the 
id  others, 
3  Franco- 

1  I'ahner- 
ithell,  id., 
Also,  the 


speech  of  Lord  Pahnerston  on  the  question  of  coini)ensation  tor  property 
of  British  nierdiaiits  destroyed  at  Uleaborg,  id.,  1045,  1040. 

He  also  cited  the  letter  of  Mr.  Marcy,  Secretary  of  State  of  the  United 
States,  to  Count  Sartiges,  the  French  minister,  Ex.  Doc.  No.  9,  Senate, 
Thirty-flfthCongress,  first  session  ;  and  Earl  Clarendon'scitation  of  same, 
Hansard,  third  series,  vol.  146,  p.  53.  Also,  Lord  Talmerston's  speech 
on  the  case  at  Leghorn,  Hansard,  third  series,  vol.  113,  p.  635;  and  the 
note  on  the  same  case  in  Vattel,  Guillaumin's  ed.,  1863,  vol.  II,  ]>.  49;  and 
the  dispatch  from  Prince  Swartzenburg  to  Baron  Hatter,  of  14th  April, 
1850 ;  and  from  Count  Nesselro«le  to  Baron  Brunow,  of  2d  May,  1850, 
cited  in  Torres  Caicedo  Union  Latino  Americano,  pp.  343,  348.  Also, 
the  opinion  of  Attorney-General  Stanbery  on  the  bombardment  of 
Valparaiso,  Attorney-Generars  Opinions,  vol.  12,  p.  21;  also,  Professor 
Bernard's  "  Xeutrality,"  pp.  443,  444  to  457,  n. 

Her  Majesty's  counsel,  on  the  other  hand,  cited  on  this  point  the  dt* 
cision  of  Dr.  Lieber,  the  umpire  of  the  commission  under  the  convention 
of  4th  July,  18(J8,  between  the  United  States  and  Mexico,  in  the  cases 
of  Anderson  and  Thompson,  and  of  the  Messrs.  Barron.  Also,  the  case 
of  the  Charming  Betsey,  2d  Cranch,  120;  Phillimore,  part  5,  cap.  1; 
Grotius,  lib.  2,  cap.  25 ;  Vattel,  lib.  2,  cap.  6,  sec.  7  ;  id.,  lib.  2,  cap.  17, 
sees.  263,  270 ;  Wheaton,  355;  Kent,  vol.  1,  sec.  4;  the  Constitution  of 
the  United  States,  Art.  3,  sec.  2 ;  the  Judiciary  act  of  the  United  States 
of  1789,  (1  Stat,  at  L.,  76,  78,  sees.  9,  11;)  the  act  of  27th  June,  1868, 
(15  Stat,  at  L.,  243;)  the  abandoned  and  captured  property  act  of 
12th  ]\Larch,  1863,  (12  Stat,  at  L.,  820  ;)  the  correspondence  between  Lord 
Lyons  and  Mr.  Seward  in  relation  to  the  case  of  Henry  E.  Green, 
United  States  diplomatic  corr.,  1863,  part  1,  pp.  515, 570 ;  and  the  annual 
message  of  President  Lincoln  to  Congress,  of  December,  1863,  official 
publication,  pp.  2,  4. 

The  commission  overruled  the  demurrer  of  the  United  States  by  the 
following  decision,  rendered  on  the  16tli  December,  1871,  in  which  all 
the  commissioners  concurred: 

The  lirst  thinjr  to  be  deciiled  in  this  (.-aso  is  wliethcr  tin;  cuininissioncis  liavejuris- 
iliction,  which  (leueiuls  ii])ou  whcthcji-  tho  claimant  is,  within  the  moaning  di"  tho 
treaty,  a  British  subject. 

That  he  is  in  fact  a  British  subject  there  is  no  donbt ;  but  it  is  contended  that,  being 
douiiciied  in  tho  United  States,  he  is  not  one  of  those  intended  by  the  trainers  of  the 
treaty  to  be  included  in  that  term.  It  is  undoubtedly  true,  as  appears  from  various^ 
cases  cited  in  the  argument,  that  the  subject  or  citizen  of  one  state  domiciled  in  au- 
otiie-  acquires,  in  .some  respects,  privileges,  and  incurs  liabilities,  distinct  from  those 
possessed  in  right  of  his  original  birth  or  citizenship.  But  he  still  remains  the  subject 
or  citizen  of  the  state  to  which  he  originally  belonged,  and  wo  see  no  reason  to  sup- 
pose that  it  was  the  intention  of  either  government  to  put  the  limited  meaning  on  the 
words  "British  subject,"  contended  for  in  the  arguments  in  support  of  the  demurrer, 
so  as  to  exclude  from  our  jurisdiction  a  British  subject  who  has  never  renounced  his 
original  allegiance,  or  become  naturalized  in  any  other  country. 

The  fact  of  the  clainumt  having  his  domicile  in  one  of  the  Confederate  States  will, 
of  course,  have  a  matcM'ial  bearing  ou  the  point,  also  raised  in  tlie  demurrer,  as  to  the 


14 


AMERICAN-BKITISII    CLAIMS    COMMISSION. 


liability  of  tli(>  claimant's  proporty  to  sei/iiio  or  (M.stnictioii  by  the  Fedoial  Arni.  .  It  is 
difficult  to  lay  down  a  jjcneial  iiilt!  a])pli(able  in  all  cases  to  the  rij^hts  of  an  iu>  ading 
army,  nor,  in  this  particular  case,  is  tliat  necessary. 

The  statements  contained  in  tiio  memorial  are,  for  tlie  purposes  of  this  argument,  to 
bo  assumed  to  bo  true.  One  of  the  statements  in  tlie  memorial  is,  that  part  of  the 
claimant's  property  was  taken  possession  of  by  the  Federal  Aimy  without  any  military 
uecossitj,  convenience,  provocation,  or  inducomont,  and  plundtired,  and  that  part  was 
wantonly  destroyed. 

Supposing  this  to  bo  true,  we  are  not  prepared  to  say  tluit  some  liability  might  not 
be  established  against  the  United  States  (jiovernmeut. 

l"iu)  demurrer  is,  therefore,  disallowed  ;  but  the  United  States  GoverumiMit  will  be 
at  liberty,  if  they  think  lit,  to  take  issue  upon  the  facts  alleged  in  the  iniiuiorial. 

In  tlie  ca.se  of  Jiinie.s  Crutcbett  vs.  The  United  States,  No.  4,  a  claim 
lor  property  taken  and  appropriated  bj-  the  United  State.s  in  the  Dis- 
tinct of  Cohiinbia,  the  memorial  showed  the  claimant  at  the  time  of  the 
alleged  injnries,  and  for  many  years  in-evious,  domiciled  at  Washington. 

A  demnrrer  was  interposed  specifying,  among  other  gronnds,  that  the 
claimant,  being  so  domiciled  within  the  United  States,  was  not  entitled 
to  the  standing  of  a  British  subject  within  the  treaty. 

The  case  was  submitted  on  this  point  upon  the  authorities  cited  in 
Barclay's  case,  as  above  noted,  and  the  demurrer  was  overruled. 

The  decisions  of  the  commission  in  these  and  other  similar  cases  estab- 
lished the  doctrine  that,  so  far  as  relates  to  the  (piestion  of  jurisdiction, 
the  national  character  of  the  party  is  to  be  determined  by  his  paramount 
allegiance,  where  that  is  not  double,  irrespective  of  the  fact  of  domicile. 

In  the  case  of  George  Adlam  vs.  The  United  States,  No.  40,  it  appeared 
from  the  memorial,  in  addition  to  the  fact  of  domicile  within  the  insur- 
rectionary States,  that  the  claimant  had  taken  the  preliminary  steps 
toward  naturalization  under  the  statutes  of  the  United  States,  by  filing 
his  declaration  on  oath  of  his  intention  to  become  a  citizen  of  the  United 
States,  and  to  renounce  all  allegiance  to  Her  Britannic  Majesty,  the 
vsovereign  of  his  nativity. 

The  counsel  for  the  United  States  on  demurrer  claimed  that  siujh  oath, 
added  to  the  fact  of  domicile,  established  the  national  character  of  the 
claimant  as  a  citizen  of  the  United  States  within  international  law,  and 
barred  him  from  any  standing  as  a  British  subject  under  the  treaty. 

The  demurrer  was  overruled. 

In  the  case  of  Joseph  Gribble  vs.  The  United  States,  N(t.  116,  the  proofs 
on  the  part  of  the  defense  showed  that  the  claimant,  who  had  filed 
his  declaration  of  intention,  under  the  naturalization  act,  before  the  pre- 
sentation of  his  memorial,  had  subsequently,  and  pending  his  claim  be- 
fore the  commission,  completed  his  naturalization,  and  was  at  the  time 
of  the  submission  of  his  cause  a  citizen  of  the  United  States.  His  claim 
was  disallowed  on  the  merits ;  but  the  undersigned  is  advised  that  the 
commission  was  unanimous  in  the  opinion  that  his  naturalization  had 
deprived  him  of  a  standing  before  the  commission  as  a  British  subject. 


il  Anil.  .  It  is 
ail  iin  uding 

ar^uinent,  to 
it  part  of  the 
t  any  military 
that  part  was 

ty  iiiiglit  not 

iiniMit  will  he 
cinorial. 

>.  4,  a  chiiin 
in  the  Dis- 
tiino  of  the 
'ashiu<^ton. 
d.s,  that  the 
not  entitled 

ies  cited  in 

uled. 

oases  estab- 
urisdiction, 
paramount 

)t'  «loniicile. 

,  it  api)eared 
II  tlie  insui- 
linary  steps 
es,  b^'  filing- 
•  the  United 
klajesty,  the 

t  such  oath, 
acter  of  the 
lal  hiw,  and 
3  treaty. 


i,  tlie  proofs 
0  had  filed 
ore  the  pre- 
is  claim  be- 
at the  time 
His  claiin 
ed  that  the 
ization  bad 
jh  subject. 


AOICNT  S   KKl'ORT, 


15 


III  the  case  of  John  W.  Sharpe  vh.  The  United  Htales,  Xo.  92,  the  claim- 
ant's i)roofs  showed  that  he  had  exercised  rights  of  citizenship  of  the 
United  States,  by  voting,  prior  to  the  i)resentation  of  his  memorial. 

The  counsel  for  the  United  States  contended,  first,  that  such  acts  con- 
stituted an  estoppel  against  the  claim  of  the  claimant  to  a  standing  as 
a  British  subject  under  the  treaty  ;  and,  second,  that  if  strictly  and  tech- 
nically there  was  no  estoppel,  siujh  acts  were  to  be  regarded  as  very 
strong  evidence  of  the  iact  of  naturalization,  atid  sutHcient  to  overcome 
the  claimant's  own  denial  on  oath  of  such  naturalization. 

An  award  was  made  in  favor  of  the  claimant,  Mr.  Commissioner  F.  - 
zer  dissenting  ;  and  the  objection  on  the  part  of  the  United  States  was 
thus  overruled. 

In  the  case  of  liobert  Eakin  vs.  The  United  States,  No.  118,  the  proofs 
showed  that  the  claitnant  had,  in  1857,  in  the  State  of  i\lississii»pi,  ex- 
ercised acts  of  citizenship  of  the  United  States  by  holding  an  ottice, 
which,  under  the  laws  of  Mississii)pi,  could  only  lawfully  be  held  by  a 
citizen  of  the  United  States ;  and  that  he  had,  in  1802,  the  State  of  Missis- 
slpj)i  being  then  in  rebellion  against  the  United  States,  hehl  a  like  oilier, 
which,  by  the  then  laws  of  Mississippi,  could  onl^'  be  held  by  a  citizen 
of  the  Confederates  States. 

The  counsel  for  the  United  States  contended  that  the  claimant  was, 
by  each  of  these  acts,  debarred  from  a  standing  as  a  British  subject. 

The  claim  was  disallowed  without  a  separate  aiul  distinct  decision  of 
this  question  ;  but  the  undersigned  is  advised  that  a  majority,  at  least, 
of  the  commission  were  of  opinion  that  such  holding  of  oHice  under  the 
rebel  government  was  of  itself  a  violation  of  neutrality,  and  debarred 
the  claimant  from  a  standing  before  the  commission. 

In  the  case  of  the  executors  of  Robert  S.  C.  A.  Alexander  vs.  The  United 
States,  No.  45,  the  memorial  showed  the  claimants'  testator  to  have  been 
born  in  the  United  States  in  1810,  but  alleged  him  to  have  been  the  son 
of  liobert  Alexander,  a  native  of  Scotland,  and  a  natural-born  subject  of 
the  British  Crown.  It  also  alleged  that  the  testator  had  always  held 
and  claimed  himself  to  be  a  liege  subject  of  the  British  Crown,  and 
that  he  had  always  been  so  held  and  regarded  by  all  others.  That  in 
his  early  youth  he  had  returned  to  S(!otland,  and  there  for  many  years 
held  ofiice  in  the  commission  of  the  peace  and  other  posts  of  trust  under 
the  British  Crown.  That  during  the  war  his  residence  was  partly  in 
Scotland  and  partly  in  Kentucky,  he  having  died  in  Kentucky  in  De- 
cember, 18G7.  The  claim  was  for  the  occupation  of  and  injuries  to  lands 
and  real  estate  of  the  testator  in  Kentrcky  by  United  States  troops 
during  the  war. 

On  demurrer  ifc  was  contended,  on  the  part  of  the  United  States,  that 
the  claimants  had  no  standing  before  the  commission  in  the  right  of 
their  testator  as  a  British  subject ;  that,  although  by  the  law  of  Great 
Britain  he  was  a  British  subject,  he  was  also  by  the  laws  of  the  United 


16 


AMKRICAN-JJUITISJI    CLAIMS    COMMISSION. 


►States  Ji  citi/eii  of  those  States;  and  that,  in  such  a  case  of  double  or 
conrtictiiif?  alU'i^iaiice,  the  claimant  was  not  to  be  regarded  as  a  subject 
of  (heat  Britain  within  the  meaning  of  the  treaty'. 

The  counsel  for  the  United  States  cited  the  Revised  Statutes  of  Ken- 
tucky, vol.  1,  p.  -3S,  c.  15,  art.  1,  sec.  1,  as  establishing  the  fact  of  citi- 
zenship under  the  law  of  Kentucky  ;  and  also  Drummond's  case,  2 
Kuapp's  P.  C.  Rep.,  205. 

The  commission  held  the  claimants  not  entitled  to  a  standing,  and 
dismissed  the  case,  Mr.  Commissioner  Gurney  dissenting. 

Mr.  Commissioner  Frazer  read  a  written  opinion,  as  follows  : 

Tlio  testator  was  by  British  law  a  British  siibjcet,  but  ho  was  also  by  tlio  law  of  the 
United  States  an  American  citizen,  by  reason  of  his  birth  in  Kentucky  :  and  lie  wu** 
not  capable  of  divesting  himself  of  his  American  mitionality  by  mere  volition  and  resi- 
dence from  time  to  time  in  Scotland  and  liolding  oflice  there. 

Being,  then,  n  subject  of  both  governments,  was  In-  a  British  subject  within  the  mean- 
ing of  the  treaty  ?  The  practice  of  nations  in  such  cases  is  believed  to  be  by  tluMi" 
sovereign  to  leave  the  person  who  h.as  embarrassed  himself  by  assuming  a  double 
allegiance  to  the  protection  which  he  may  (ind  provided  for  him  by  the  municipal  laws 
of  that  other  sovereign  to  whom  he  thus  also  owes  allegiance.  To  treat  his  grie\  ances 
against  that  other  sovereign  as  subjects  of  international  concern,  would  be  to  claim  a 
jurisdiction  paramount  to  that  of  the  other  nation  of  which  he  is  also  a  subject.  Cora- 
plications  would  inevitably  result,  for  no  government  wouhl  recognize  the  right  of 
another  to  interfere  thus  in  behalf  of  one  whom  it  regarded  as  a  subject  of  its  own.  It 
has  certaiidy  not  bt^en  the  practice  of  the  British  government  to  interfere  in  such 
cases ;  and  it  is  not  easy  to  believe  that  either  government  meant  to  provide  for  them 
by  this  treaty.  In  Drummond's  case  the  terms  of  the  treaty  were  quite  as  compre- 
hensive as  those  of  this  treaty  ;  and  yet  it  was  there  held  that  the  claimant  was  not 
within  the  treaty,  not  being  within  its  intention.  This  was  held  even  :ifter  it  was 
ascertained  that  he  was  not  a  French  sidtject,  he  having  merely  evinced  hi-*  intention 
to  regard  himself  as  a  French  subjtict. 

I  am  advised  that  in  this  opinion  the  [(residing  commissioner  con- 
curred. 

In  the  case  of  Joseph  Fry  ^Mogridge  r.s.  The  United  States,  Xo.  345,  the 
.same  principle  was  applied  by  a  majority  of  the  commission  under  a 
like  state  of  circumstances,  except  that  the  memorial  in  effect  alleged 
the  claimant  to  have  been  born  in  Pennsylvania  of  native-born  British 
subjects,  never  domiciled  within  the  United  States,  but  on  a  visit  there 
at  the  time  of  his  birth,  and  who  returned  to  England  within  a  few 
weeks  thereafter,  where  the  claimant  remained  during  his  minority. 
He  was  domiciled  in  the  United  States  at  the  tinu^  of  the  alleged  inju- 
ries— the  taking  and  destruction  of  his  property. 

His  claim  was  disinissed  in  like  manner. 


In  the  case  of  Joseph  W.  Scott  r,v.  The  United  States^  No,  22{>,  for  (lam- 
ages  for  wrongful  imprisonment,  and  for  api)ropriatiou  and  destruction 
ot  property,  the  proofs  showed  that  the  claimant  was  born  in  the  British 
province  of  New  Brunswick  in  1813.  His  father,  Daniel  Scott,  was  born 
in  the  then  province  of  Maine,  in  March,  1708,  and  continued  to  reside 
in  Maine  after  the  recognition  of  tlie  independence  of  the  colonics  by 


oiible  01' 
I  subject 

;  of  Ken- 
it  of  eiti- 
i  case,  2 

ling,  and 


law  of  the 
ti(\  he  wii** 
II  und  resi- 

tho  ineaii- 
0  by  their 
a;  a  double 
icipul  hiw» 
gii(!\ances 

to  cliiiiu  a 
ect.  (Joru- 
le  liKht  of 
ts  own.  It 
ire  in  such 
lo  for  them 
IS  comiiie- 

t  was  not 

fter  it  was 

intention 

iner  con- 


345,  tbe 
under  a 
alleged 
British 
sit  there 
in  a  few 
linority. 
»ed  inji^- 


or  (liun- 

truction 

British 

rasboru 

reside 

iiies  bv 


AGENTS   REPORT. 


17 


Great  Britain,  and  after  he  became  of  age,  which  was  in  Marob,  1780. 
Tlie  time  of  Daniel  Scott's  removal  to  New  Brunswick  was  left  somewbat 
uncertain,  ranging  from  December,  17.S0,  to  1794. 

On  the  part  of  tbe  United  States  it  was  claimed  that  Daniel  Scott, 
the  father,  liaving  been  a  citizen  of  tbe  United  States,  tbe  claimant, 
Josepb  W.  Scott,  was  by  tbe  naturalization  laws  of  18iHi  (*J  Stat,  at 
L.,  lij.j,  §  i)  also  a  citizen  of  tbe  United  States,  and  was  (b'barred  from 
a  standing  before  the  commission  witbln  the  i)rlncii)ie  held  by  the  com- 
mission in  tbe  case  of  Alexander. 

At  tbe  time  of  the  alleged  injuries,  and  for  many  years  previous,  ho 
was  domiciled  in  tbe  State  of  Florida,  one  of  tbe  insurrectionary  States. 
Tbe  counsel  for  tbe  United  States  cited  tbe  first  article  of  tbe  treaty 
of  peace  between  tbe  United  States  and  Great  Britain,  concluded  Sep- 
tember 3,  1783,  (8  Stat,  at  L.,  80,  81,)  atid  tbe  cases  of  Inglis  r.s'.  Tbe 
Sailors'  Snug  Harbor,  3  Peters,  1)9;  Slianks  r.s,  Dupout,  id.,  244;  Doe 
vs.  Acklan,  2  B.  &  C,  779;  and  Marryatt  vs.  Wilson,  1  B.  &  P.,  430. 

On  tbe  part  of  tbe  claimant  it  was  contended  that  Daniel  Scott,  being^ 
a  minor  at  tbe  time  of  the  conclusion  of  tbe  treaty  of  i)eace  between 
Great  Britain  and  tbe  United  States,  was  entitled,  witbln  a  reasonable 
time  after  attaining  bis  majority,  to  elect  to  wbich  government  be  would 
adhere,  and  that  be  did  make  such  election  witbln  such  reasonable  time  by 
bis  removal  to  New  Brunswick. 

Claimant's  counsel  cited  tbe  cases  of  Jephsou  vs.  Eiera,  3  Knapp's  P. 
C.  R.,  and  (.'ount  Wall's  case,  id. 

An  award  was  made  in  favor  of  tbe  claimant,  Mr.  Commissioner 
Frazer  dissenting.  No  written  opinions  were  read.  I  am  advised  that 
tbe  decision  [)roceeded  upon  tbe  ground  tbat  Daniel  Scott's  removal  to 
New  Brunswick  constituted  an  election,  within  a  reasonable  time,  to 
adhere  to  bis  British  allegiance. 

In  the  cases  of  Elizabeth  L.  11.  Bowie  vs.  Tbe  United  States,  No.  320,, 
Martha  M.  Calderwood  vs.  same, No.  3(jl),  Martha  M.  Tooraen  j;.s'.  same, No. 
184,  anil  otliers,  it  was  held  tbat  tbe  national  character  of  a  married  wo- 
man is  governed  by  tbat  of  her  husband  in  all  cases,  irresi)ective  of  domi- 
cile ;  and  tbat  on  tbe  death  of  the  husband  the  national  character  of  the 
widow  acquired  by  marriage  remains  nncbanged.  From  tbis  condusiou 
Mr.  Commissioner  Frazer  dissented,  in  tbe  case  of  a  widow  of  American 
origin  who  had  always  remained  domiciled  witbln  tbe  United  States, 
holding  tbat  in  such  case,  upon  the  death  of  her  British  husband,  her 
original  national  character  reverted. 

In  the  case  of  Mrs.  Bowie,  No.  320,  the  claimant  was  by  birth  a  Brit- 
ish subject,  bnt  was  at  the  time  of  tbe  alleged  injuries  tbe  widow  of  a 
citizetfof  tbe  United  States,  and  domiciled  in  the  insurrectionary  State 
of  Virginia,  and  before  the  filing  of  her  memorial  had  again  intermarried 
with  a  citizen  of  the  United  States,  wbo  was  still  living  and  tbere  domi- 
ciled. Her  claim  was  disallowed,  all  tbe  commissioners  agreeing. 
2  H 


18 


AMKRICAN-HRITISII    CLAIMS    COMMISSION. 


In  tliQ  oaso  of  ^Fis.  Ciildorwood,  No.  300,  (claimant  was  a  iiativo-born 
citi/-»'ii  of  the  United  States,  had  iiitoniiarricd  with  a  r»ritish  siibjcctt 
who  was  siii(!o  dectcascd,  and  had  always  Ikhmi  «h)ini(;iled  in  the  State  of 
Louisiana.  Tiie  eonmiission,  on  deuuiner,  heUl  hera  British  siilijeet,  Mr. 
Commissioner  Fra/er  dissenting'. 

In  the  ease  of  Mrs.  Tooraon,  \o.  184,  ehiimant  was  by  birth  a  IJritish 
.subjet;t,  lier  linsband  at  tlie  time  of  marriaj;e  beiny  a  snbjeiit  of  Sweden, 
but  natnrali/A'd  as  a  eiti/.en  of  the  United  States  subsequent  to  the  mar- 
riage. Claimantand  her  husband  were  both  domieiled  from  tlie  time  of 
marria}j;e  within  the  United  States.  Her  chiim  was  unanimously  dis- 
missed. 

In  the  case  of  Jane  L.  Brand,  No.  ISO,  which  was  a  claim  for  alh'<?etl 
wronfitid  imprisonment  and  approi)riation  of  the  claimant's  i)roperty  at 
New  Orleans,  it  appeared  that  claimant,  a  native  of  Ireland,  had  been 
fov  several  years  domiciled  in  New  Orleans.  She  there  married  in  1838 
a  citizen  of  the  United  States,  who  died  in  18 10,  and  she  had  since  re- 
mained his  widow  and  continued  domiciled  in  New  Orleans.  Iler 
memoiial  alleged  that,  though  nuirried  to  an  American  citizen,  "she 
never  in  any  manner  adopted  his  nationality;''  that  after  his  death 
she  uniformly  claimed  the  character  of  ii  British  subject;  and  that  in 
August,  18013,  before  the  commission  of  the  acts  complained  of,  or  a  part 
of  them,  she  had  made  i)roof  of  her  character  as  a  Bi'itish  subject  be- 
fore the  British  consul  at  New  Orleans,  and  been  duly  registered  as  such. 

On  the  part  of  the  claimant  it  was  contended  that  at  the  time  of  the 
claimant's  marriage  and  of  tlie  death  of  her  husband,  and  up  to  the  pas- 
sage of  the  act  of  the  United  States  Congress  of  10th  February,  1855, 
(10  Stat,  at  L.,  001,)  the  claimant  was  not  by  the  laws  of  the  United 
States  a  citizen  of  those  States,  the  act  of  1855  being  the  first  to  give 
such  status  to  an  alien-born  woman  by  her  marriage  to  a  citizen  of  the 
United  States.  That  up  to  the  conclusion  of  the  naturalization  conven- 
tion of  13th  May,  1870,  between  the  United  States  and  Great  Britain, 
(10  Stat,  at  L.,  775,)  and  the  supplemental  convention  of  23d  Februai'y, 
1871,  between  the  same  nations,  (17  id.,  841,)  no  provision  existed  for 
the  manner  in  which  a  British  subject  who  had  married  a  citizen  of  the 
United  States  should,  upon  becoming  a  widow,  reclaim  her  original  na- 
tionality. That  the  universal  custom  among  nations,  founded  ui)on  inter- 
national comity,  if  not  upon  international  law,  allowed  such  widow  to 
choose  whether  she  would  retaiu  the  nationality  of  her  deceased  bus- 
band  6v  return  to  that  of  her  birth.  That  Mrs.  Brand,  by  always  claim- 
ing, after  her  husband's  death,  the  condition  of  a  British  subject,  and 
by  registering  herself  .as  such  in  the  consulate  at  New  Orleans  in  1802, 
had  done  all  that  was  necessary  to  enable  her  to  re-assume  her  original 
national  character;  and  that  it  was  not  necessary  for  her  to  avail  her- 
self of  the  provisions  of  the  conventious  of  1870  and  1871  in  order  to 


A(ii:NT.S    IIKPOUT. 


10 


nisdiiiin  and  voiJiidiatc  any  allcyed  condition  of  Amoiican  citizenship 
uc<inir('d  by  licr  inairiaj^c. 

Ilcr  Majesty's  connscl  cited  the  (;ase  of  ivelly  rs.  Owen,  (7  Wall.,  l!M!.i 
On  tile  i>art  of  the  Ignited  States  it  was  contentled  tliat,  nn(h'r  tlie 
ininciples  rec.o;^ni/ed  by  tlie  coiirndssion  in  the  cases  of  Mrs.  CahU'i'Wood, 
>'(>.  ;5(iO,  and  others,  it  was  settled  that  the  natioind  character  of  a  mar- 
ried woman  was  in  all  cases  «leternuned  by  that  of  her  hnsband  ;  and 
that  sneh  national  character,  once  ac((nired  by  marriaj;!',  continncd  on 
the  death  of  the  linsband.  That  this  doctrine  had  always  prevailcil  in 
('treat  JJritain,  as  well  as  elsewhere,  where  the  «loinicile  of  the  wile  and 
Avidow  had  continncd  to  bo  that  of  the  husband's  nationality  ;  and  that 
by  no  treaty  stipulation  or  law,  municipal  or  intennitional,  was  the 
widow  ever  allowed  to  reclaim  her  original  nationality  whde  still  domi- 
ciled within  the  natioinility  ofherhusband,  until  the  conventionsof  1S70 
and  1871  ;  and  that  by  those  conventions  she  could  only  reclaim  her 
orij^inal  nationality  in  the  form  provided  by  the  convention  of  1871, 
Avhich  in  the  case  of  Mrs.  IJrand  had  never  been  done.  That  she  was, 
therefore,  both  at  the  time  of  the  commission  of  the  allej^ed  wronj-s  and 
at  the  time  of  the  presentation  of  her  memorial,  a  citizen  of  the  United 
States. 

The  commission  unanimously  sustained  the  doctrine  maintaine<l  on 
behalf  of  the  United  States,  and  dismissed  the  claim  for  want  of  juris- 
diction. 

2.  In  the  cases  of  James  B.  Halley,  administrator,  &c.,  vs.  The  United 
States,  No.  2do,  Ann  Crrayson,  adnninstratrix,  &c.,  vs.  .same,  No.  -J!>1, 
and  others,  the  question  was  raised  as  to  the  jurisdiction  of  the  com- 
mission in  the  case  of  the  personal  representatives  of  British  subjects 
Mho  had  died  holding  claims  within  the  treaty  against  the  United  States, 
where  such  per.soual  representatives  were  citizens  of  the  United  States. 

On  the  part  of  the  United  States  it  was  claimed  that  under  the  treaty 
the  claims  again.st  the  United  States  of  which  ■  .  commission  had 
jurisdiction  must  be  not  only  those  arising  out  of  acts  committed 
against  the  person  or  property  of  Briti.sb  subjects,  but  also  must  be 
prosecuted  before  the  commission  on  behalf  of  British  subjects;  and 
that  where  the  claim,  though  originally  one  of  a  British  subject,  had 
been  transferred  by  act  of  the  original  claimant  or  by  operation  of  lavv 
to  citizens  of  the  United  States,  such  citizens  could  have  no  standing 
before  the  commission. 

In  the  case  of  Mrs.  Grayson,  No.  291,  the  claim  was  prosecuted  by 
her  as  administratrix  of  John  J.  Cowley,  a  deceased  British  subject. 
The  claimant  was  the  widow  of  Cowley,  but  bad,  before  presenting  lier 
claim,  intermarried  with  Grayson,  a  citizen  of  the  United  States.  The 
distributees  of  Cowley's  estate  were  the  widow  and  certain  brothers 
and  sisters,  all  British  subjects  and  domiciled  within  the  British  domin- 
iou.s.    An  award  was  made  in  favor  of  the  claimant  for  the  one-half  of 


20 


AMERICAN-imiTISII    CLAIMS   COMNfTSSION. 


tlio  cliiiin  to  whicli  tlio  «llstril)ntoos  wpfp  ontitlod,  rojcctinpf  the  one-half 
belonging  to  tli(!  widow  as  tlio  claim  of  an  Ainoiiciim  <*ilizoii. 

In  tlio  ortHO  of  Iliilloy  and  otlior  casos  8iil)initto<l  with  it  tho  following 
dooision  was  entorod : 

Tli«  mrtj(»rity  of  the  coiimiisHionorsaro  of  opinion  tlmt,  wli«ro  tlio  claim  \h  l>y  an  ail- 
miiiishator  ill  icspoct  of  inJlIl•il^s  to  j)it>i)i)ity  of  jui  iiit('j<tiito  who  win  (ixchi.sivoly  a 
liritisli  Hiiliji'ct,  iiiid  tlir  Ix^iii'jiciiu'ifs  aro  Hritisli  siihji'ut.s  as  wt'l!  as  Alll(■^i(^■lll  citi/ciis, 
till'  cliiiiii  limy  \w  ]»ros»M:iit<Ml  for  tlioir  hoiiotit.  Tlio  «'OMiiMisMioii('rH  arn  all  of  opinion 
that  tliu  particular  nationality  of  tliu  lulniiniHtrator  docs  not  atiuct  tUo  qiiostion. 

Froin  tho  first  portion  of  this  decision  Mr.  Coinuiissiouer  Frazer  dis- 
sented, as  follows : 

Hy  tho  vory  words  of  tho  troaty  (Article  12)  the  claim  must  bo,  first,  for  an  act  done 
to  the  "  iK'rH«m  or  i)ro|tcrty  of"  a  Jiritish  Huhjoct ;  second,  it  ninst  ho  iiiado  "on  tho  part 
of"  a  Ihiti.sh  snhjt'ct.  Distinctly,  then,  those  two  things  ninst  concur  to  {jivons  jurisdic- 
tion. This  is  too  plain  to  admit  of  controversy.  Tlie  treaty  is  tlio  laiij;na>;e  of  both  gov- 
crniiients,  and  must  be  construed  to  ell'eetuato  not  the  intent  of  one,  only,  but  of  both. 
If  any  of  its  terms  have  one  sense  in  Great  liritain  and  another  in  t'.ie  United  States  by 
reason  of  their  respective  laws,  neithi'r  of  these  senses  can  fairly  bo  taken  ;  another, 
thonsli  limited,  sense  must  be  8onp;ht,  conunon  to  both  countries.  There  is  such  a  re- 
stricted sense  of  the  lan}?ua>;e  employed  here.  In  Alexander's  case  I  expressed  myself 
on  this  branch  of  the  present  iiueslion.  One  born  in  the  United  States  of  Jhitish 
parents  residing?  hero  would  be  protectted  by  the  United  States  as  fully  as  any  Aiiieii- 
can  aj^ainst  wron<j;s  from  other  countries,  CJreat  rbitaiii  probably  not  excejited.  And 
Great  Britain  wonhl  not,  as  a;;ainst  tin'  United  Stati's,  intervene  in  his  beliall",  tliono;li 
she  wouhl  claim  him  as  her  snl>je(!t,  and  hold  him  to  accountability  as  sucli  if  found 
bearing  arms  a<;ainst  her.  And  if  born  here  of  Uritish  parents  duiiii};'  a  temjioraiy 
sojourn,  but  afterwards  doniieiltfd  in  Eiif^landand  never  residing  Uviv,  the  United  States 
would  practically  treat  him  as  not  an  Americau,  refusing  to  intervene  in  his  behalf 
against  any  other  government,  though  she,  too,  would  hold  him  to  accountability  as 
a  citizen  if  found  in  arms  against  her.  And  so  of  persons  born  in  Great  Britain  of  Amer- 
ican parents.  Tho  treaty  is  tho  product  of  diplomacy,  providing  this  international 
tribunal  for  tho  amicable  setth^ment  of  claims  concerning  which  each  power  could 
lawfully  claim  redress  as  it  saw  lit,  not  of  claims  for  which  it  would  have  no  right  to 
claim  redress. 

Alexander's  case  was  a  little  ditferont.  He  had  estates  and  a  domicile  in  both  coun- 
tries ;  was  born  in  the  Unitetl  States  of  British  parents  domiciled  here,  but  claiming 
only  British  nationality.  This  would  be  an  interpretation  of  the  treaty  wliich  Avould 
maintain  our  jurisdiction  in  all  cases  in  which  the  complaining  government  would,  by 
international  law,  have  l)een  at  I'.berty  to  demand  redress.  It  would  settle  all  such 
cases,  and  thus  etl'ectnato  tho  purpose  of  the  treaty  which  was  to  terminate  our  diplo- 
matic diii'erences.  Tho  principles  above  stated,  it  seems  to  me,  apply  quite  as  fully 
w^here  the  person  beneficially  interested  in  tho  claim  made  before  us  is  of  both  nation- 
alities as  where  the  person  originally  injured,  being  also  of  both  nationalities,  is  still 
living  and  makes  claim.  To  entertain  the  claim  in  either  case  is  to  assume  that  each 
government  has  by  the  treaty  recognized  its  responsibility  to  the  other  for  injuries 
done  to  those  who  are  by  its  laws  its  own  citizens  or  subjects^  This  construction,  it 
geenis  to  me,  is  utterly  inadmissible.  I  cannot  possibly  bring  myself  to  believe  that 
either  government  intended  any  such  thing. 


agent's  rkpokt. 

II.-jrUI.SlMCTION  A8  TO  Sl'IUKt'T-MATTKU. 


21 


Numoroiis  (|U(^stiolls  in  this  ivffard  anistMliiriiij;  the  proffioss  of  tlie 
comiiiissioii.  but  tlu-y  are  so  iiitiiiialH.v  coinn'cted  witli  the  iiuMils  of  tiie 
cas«'s  tlu'insclve.s  tliat  tlioy  will  he  treated  of  under  the  separate  (-ases 
as  they  may  be  hereafter  considered. 

III.-ALLOWANCE  OF  INTI.UEST. 

The  commission  ordinarily  allowed  interest  at  the  rate  of  six  i>or  (tent, 
per  annum  from  the  date  of  the  injury  to  the  anticipated  date  of  the 
final  I.  ward. 


IV.-CLAIMS    OF    CITIZENS    OF    THE    UNITED    STATES    AGAINST    GREAT 

BRITAIN. 

Saint  Albans  raid. 

The  First  National  Bank  of  Saint  Albans  vs.  Great  Britain,  No.  1. 

Collins  U.  Huntington  vs.  same,  No.  2. 

AVilliam  and  Erasmus  D.  Fuller  vs.  same,  No.  3, 

Bradley  Barlow,  receiver  of  the  Saint  Albans  Bank  vs.  same.  No.  L 

[Mariette  Field,  avlministratrix,  &c.,  vs.  >■■  mo,  No.  o. 

S  th  W.  Langdon  vs.  same,  No.  (>. 

•loseph  S.  AVeeks  vs.  same,  No.  7. 

!  reck  «S:  Wetherbee  r«.  same.  No.  8. 

Aldis  O.  Brainerd  vs.  same.  No.  9. 

Charles  F.  Everest  vs.  same,  No.  10. 

Oscar  A.  Burton,  receiver  of  the  Franklin  County  Bank  vs.  same,  No.  13, 

Lucieu  B.  Clough,  administrator,  &c.,  vs.  same,  No.  1-1. 

These  claims  all  arose  out  of  the  same  transaction,  .and  were  con- 
sidered and  decided  together.  All,  except  No.  14,  were  claims  for 
property  taken  and  appropriated  or  destroyed  at  Saint  Albans,  Vt.,  by 
an  incursion  of  rebels,  known  as  the  Saint  Albans  raid,  in  October, 
18G4.  No.  14r  was  a  claim  brought  by  the  administrator  of  Elinas  J. 
Morrison,  deceased,  to  recover  damages  for  the  wrongful  killing  of  said 
deceased  by  the  rebels  engaged  in  the  same  raid. 

The  entire  amount  claimed  in  all  the  cases  was  $313,490,  besides  in- 
terest. 

The  allegations  in  all  the  memorials  were  substantially  the  same,  and 
as  follows : 

That,  shortly  before  the  19th  of  October,  1804,  a  large  number  of 
persons,  then  domiciled  or  commoraut  within  Her  Britannic  Majesty's 
j)rovince  of  Canada,  ombined  together  within  those  provinces  for  the 
purpose  of  committi'  *  acts  of  depredation,  rapine,  and  war  from  said 
provinces  as  a  base^of  operations,  and  as  a  shelter  for  immediate  re- 
treat, against  the  persons  and  jiroperty  of  citizens  of  the  United  States 


'li 


22 


AMERICAX-I3RITISII    CLAIMS    COMMISSION. 


"li 


II  n 


rosidiiiq'  within  those  Statos.  That  some  twenty  or  more  of  those  per- 
sons, shortly  before  that  <h'.y,  pursuant  to  the  combinations  so  nuide, 
]tro(;(!e(le(l  from  Tier  i'\Iaj'esty'.s  province  of  Canada  East  into  tlie  terri- 
tory of  tlio  United  States,  and  assembled  at  the  viHage  of  Saint  Albans, 
in  the  State  of  Vermont,  distant  about  twelve  miles  from  the  border  of 
sai<l  province.  That,  beinj?  so  assembled,  they  took  forcible  and  armed 
possession  of  a  ])art  of  said  village ;  there  seized  and  imprisoned  several 
citizens  of  the  United  States;  tired  shots  at  sundry  citizens;  by  such 
shootnig  killed  the  decedent  named  in  No.  14;  set  tire  to  several  buildings 
in  the  village;  entered  three  of  the  banks  therein,  seizing  and  imprison- 
ing the  oniceraof  such  banks,  and  seized  and  ai)propriatedthe  securities 
and  moneys  from  the  safes  of  said  banks,  together  with  hor.ses  and  other 
])roperty  named  in  the  several  memorials.  That  all  these  acts  were  com- 
mitted underarms  and  with  military  uniform,  equipage,  and  organization 
to  a  greater  or  less  extent.  That  after  the  perpetration  of  these  acts 
the  jierpetrators  retreated  in  a  body  toward  the  province  of  Canada,  and 
entered  that  i)rovince,  carrying  with  then  the  i)lundered  property,  and 
closely  pursued  b^*  the  citizcnsof  Saint  Albans  and  vicinity,  who  organ- 
ized for  that  purpose,  and  would  doubtless  have  captured  the  fugitive 
marauders  but  for  the  asylum  afforded  them  by  Iler  Majesty's  province. 
Tliat  shortly  after  the  arrival  of  the  retreating  marauders  within 
the  province  of  Canada,  several  of  them  were  arrested  by  local 
magistrates  in  that  province,  and  a  part  of  the  plunder  carried  off  by 
them  was  seized  by  such  magistrates  and  retained  ii.  their  custody. 
That  immediately  thereafter  requisition  was  made  by  the  Government  of 
the  United  States  upon  Her  Britannic  Majesty's  government  for  the 
surrender  of  said  persons  on  the  charges  respectively  of  murder,  assault 
with  intent  tocommitmurder,  and  robbery,  committed  within  the  jurisdic- 
tion of  the  United  States,  such  requisition  being  based  on  and  conform- 
able to  the  terms  of  Article  10  of  the  treaty  of  9th  August,  1S42,  be- 
tween the  United  States  and  Great  Britain.  That  the  requisition  was 
Kupi)()rted  by  full  evidence  on  tho  part  of  the  United  States  of  the 
commission  by  the  persons  so  charged  of  the  acts  of  violence  above 
named.  That  before  the  liearing  before  such  local  magistrates  of 
the  charges  preferred  against  such  arrested  persons,  Her  Majesty's 
government  for  said  province  caused  the  jurisdiction  of  such  local 
nnigistrates  and  the  proceedings  before  them  to  be  superseded  by  one 
Charles  J.  Coursol,  a  judicial  olhcer  of  the  province,  who  took  jurisdic- 
tion of  the  matters  charged,  issued  warrants  for  the  arrest  of  the  persons 
so  charged,  and  caused  such  persons  to  be  removed  from  the  jail  at 
St.  John's,  Canada,  where  they  were  confined  under  i)roces8  issued  by 
the  local  magistrates,  to  the  city  of  Montreal ;  and  also  caused  the  prop- 
erty seized  to  be  transferred  from  the  custody  of  the  local  magistrates 
to  the  custody  of  Her  Majesty's  ofllicers  in  Montreal.  That  a  partial 
hearing  was  had  before  Judge  Coursol,  on  which  liearing  full  evidence 
was  made  of  the  commission  of  such  acts  of  violence  by  the  persons  so 


agent's  report. 


2i3 


'  tliose  por- 
s  so  inado, 
1  the  ti^rii- 
iiit  Albans, 
15  border  of 
und  armed 
lied  several 
s;  b}'  such 
1  buildings 
1  iniprisou- 
?.  securities 
s  and  other 

were  com- 
^ganization 
these  acts 
ana<la,  and 
)perty,  and 
rtho  organ- 
he  fugitive 
5  province, 
ers  Avithin 

bj'  local 
:'ie(l  off  by 
r  custody. 

rnnient  of 
'ut  for  the 
er,  assault 
lejurisdic- 
l  conform- 
,  1.S42,  be- 
iition   was 

es  of  the 
ice  above 
stratea  of 

Majesty's 
uch  local 
ed  by  one 
:  jurisdic- 
le  persons 
the  jail  at 
issued  by 

tlie  prop- 
igistrates 

a  partial 

evidence 

ersons  so 


i 


charged  ;  and  that  the  hearing  was,  on  the  application  of  the  persons 
charged,  unreusoir.ibly,  and  against  the  protest  of  the  counsel  for  the 
United  States,  posti  oned  IVoni  time  to  time  to  the  l.'Uh  December,  18(51, 
^or  the  i)urp()se  of  enabling  the  resjiondents  to  make  jiroof  of  tlieir  being 
commissioned  and  authorized  by  the  Confederate  States  of  America,  so 
called,  to  commit  the  acts  of  violence  named.  Tliat  on  the  l.'Jth  De- 
cember Judge  Coursol,  without  hearing  any  further  proofs  or  argu- 
nients,  in  a  hasty,  unjudicial,  and  indecent  manner  discharged  from  cus- 
tody the  persons  against  whom  such  hearing  had  chietiy  proceeded,  and 
all  other  persons  arrested  and  held  ou  the  same  charge,  and  immedi- 
ately and  with  indecent  haste  ordered  the  money  and  property  of  the 
claimants  found  upon  the  persons  so  charged  to  be  delivered  uj)  to  them, 
and  permitted  them  to  make  their  escape  therewith,  siicli  money  and  prop- 
]>erty  amounting  to  $80,000  and  ui)\vards,  and  having  been  fully  proved 
and  identified  as  the  money  and  property  of  the  claimants,  and  as  having 
been  plundered  and  carried  off  by  the  persons  so  charged  and  arrested  and 
discharged.  That  subsequently  further  warrants  were  issued  by  Judge 
Smith,  one  of  fler  Majesty'sjustices  of  the  superior  court  for  the  said  pro- 
vince, on  which  warrants,  after  much  delaj'  and  hindrance,  arising  from 
the  friendliness  of  the  constabulary  of  the  province  to  the  confederate 
raiders  and  their  pretended  government,  and  the  unfriendliness  of  the 
same  to  the  United  States  Government  and  its  people,  in  consequence 
whereof  most  of  the  otfenders  were  allowed  to  escajie,  and  all  the  money 
and  property  was  allowed  to  be  se  i-eted  or  removed,  live  of  the  persons 
so  charged  were  again  arrested  and  brought  before  Justice  Smith  u])on 
an  api)lication  of  the  United  States  for  their  extradition.  That  alter 
much  delay  Justice  Smith  decided  that  the  persons  were  not  the  sub- 
ject of  extradition  under  the  treaty,  but  were  belligerents  against  the 
United  States  in  committing  the  acts  complained  of,  and  in  making 
their  retreat  to  Canada  and  enjoying  its  asylum,  and  discharged  the 
prisoners.  That  by  these  actts  of  the  judicial  oflicers  of  Canada,  Her 
^Majesty's  government,  in  ell'ect,  refused  to  surrender  the  persons  who 
committed  these  acts  of  violence  within  the  United  States,  and  refused 
to  restore  to  the  United  States  and  to  its  citizens  the  property  and 
money  so  takeii  and  carried  by  the  plunderers  into  the  province/of 
Canada-  That  in  the  commission  of  these  acts,  a»s  well  as  in  their  or- 
ganization and  preparation  for  the  same,  these  raiders  claimed  to  act 
under  the  authority  and  in  aid  of  the  so-called  Confederate  States  of 
America— the  enemi(!s  of  the  United  States— and  that  their  confedera- 
tion and  organization  for  the  purpose  of  committing  these  acts  were 
well  known  to  many  of  the  government  ollicials,  local  oOicers,  and  citi- 
zens of  the  province  of  Canada  before  the  occurrence  of  the  acts  named 
at  Saint  Albans.  That  in  consequence  of  the  culpable  negligence  or 
connivance  of  the  authorities  of  the  province,  no  steps  were  taken  to 
])revent  the  expedition,  or  to  give  any  information  to  the  United  States 
Government,  or  any  of  its  oflicers,  so  as  to  enable  them  to  protect  them- 


24 


AMERICAN-BRITISH   CLAIMS   COMMISSION. 


'i 


selves  against  such  acta.  Tliat  both  before  and  after  the  acts  in  ques- 
tion warui  sympathy  and  hospitality  were  extended  to  the  ofl'enders  by 
a  large  number  of  the  leading  and  influential  citizens  of  the  province 
of  Canada,  and  the  acts  themselves  were  vindicated  and  ai)proved  by 
some  of  the  olHcial  government  newspaper  organs  in  tlie  province;  and 
that  snch  sentiments  prevailed  there  that  magistrates  and  peace  oflicers 
in  many  instances  refused  search-warrants  and  the  necessary  assistance 
to  enforce  the  same;  in  consequence  of  which  many  of  the  offenders 
were  allowed  to  escape  without  arrest  and  carry  with  them  the  plun- 
dered property.  The  memorials  charged  Her  Majesty's  government  and 
otlicial  authorities  in  Canada  to  have  been  culpably  negligent  in  per- 
mitting the  raid  in  question  from  their  borders,  and  in  permitting  the 
returning  band,  under  fresh  pursuit,  to  escape  into  Canada  and  obtain 
asylum  therein,  and  in  refusing  to  surrender  them,  with  their  booty,  to 
the  United  States,  and  in  neglecting  and  refusing,  upon  full  notice  and 
demand,  to  restore  to  the  United  States  or  to  the  claimants  the  money 
and  proi)erty  of  the  claimants  so  carried  off  by  the  raiders. 

Proofs  taken  on  the  part  of  the  claimants  fully  established  the  facts 
of  the  depredations  committed  at  Saint  Albans,  as  alleged  in  the  several 
memorials,  and  that  those  depiedations  were  comnntted  by  a  body  of 
men  who  came  separately  or  in  small  detachments  from  Canada  in  the 
guise  of  ordinary  travellers  and  without  any  open  or  apparent  organiza- 
tion or  military  array.  Tliat  their  first  apparent  action  in  an  organized 
body  or  in  unison  commenced  at  Saint  Albans,  on  the  19th  October,  ISGJ:, 
and  continued  less  than  an  hour.  That  innnediately  after  the  committing 
of  the  depredations  charged  in  the  complaint  they  retreated  in  a  body 
toward  Canada;  were  closely  pursued  by  tb  citizens  of  Saint  Albans 
and  vicinity,  who  rallied  for  that  purpose;  and  that  the  pursuit  was 
only  abandoned  upon  the  retreating  party  entering  the  i)rovince  of 
Canada.  The  party  acted  under  the  command  of  one  Bennett  H.  Young, 
a  lieutenant  in  the  army  of  the  Confederate  States,  and  all  its  members 
were  claimed  to  have  been  connected  with  the  regular  military  service 
of  the  confederates. 

The  arrest,  examination,  detention,  discharge,  re-arrest,  and  final  dis" 
charge  of  some  of  tho  party,  substantially  as  alleged  in  the  memorial' 
■were  also  established  by  proofs  on  the  part  of  the  claimants.  Testiuiony 
was  taken  on  both  sidea  bearing  upon  the  question  of  the  knowledge  by 
the  authorities  of  Canada  of  the  intentions  of  the  confederates  to  organ- 
ize a  raid  from  Canada  upon  Saint  Albans  or  other  fiontier  towns  of  the 
United  States,  and  as  to  the  conduct  of  those  authorities  in  regard  to 
taking  anj'  measures  to  prevent  or  suppress  such  intended  raid. 

Among  the  witnesses  examined  on  the  part  of  the  claimants  to  show 
such  knowledge  by  the  Canadian  authorities,  and  their  faihire  to  take 
proi)er  steps  to  prevent  or  suppress  the  raid,  were  Cuillaume  Lamothe 
chief  of  police  of  the  city  of  Montreal  at  the  time  of  the  raid,  and  Jacob 
Eynders,  a  detective  in  the  employ  of  the  United  States  at  Montreal  at 


AGENT  S    REPORT. 


25 


s  in  qnos- 
Miders  by 
province 
roved  by 
nee ;  aud 
^e  officers 
ssistance 
offenders 
ulie  pluii- 
uent  and 
t  in  per- 
tting  the 
id  obtain 
booty,  to 
)tice  and 
le  money 

the  fticts 

e  several 

I  body  of 

la  in  the 

ir^aniza- 

rg^anizc'd 

r,  18G4, 

niitting 

a  body 

Albans 

snit  was 

ince  of 

Yonng-, 

lenibers 

service 

nal  dis- 
Miiorial' 
itiniony 
Mlge  by 
organ- 
of  the 
;ard  to 

o  show 
to  take 
mothe 
Jacob 
real  at 


the  same  time.  The  evidence  of  these  and  other  witnesses  tended  to 
establish  the  fact  that  the  raid  upon  Saint  Albans  was  arranged  and 
organized  in  Canada;  that  the  fact  that  that  raid  or  similar  raids  were 
in  contemplation  w?.s  known  to  high  officers  of  the  Canadian  govern- 
ment, among  others  to  Sir  George  E.  Cartier  and  Sir  Etianne  Tach«5, 
then  members  of  the  Canadian  ministry  ;  to  Col.  William  Ermatinger,  a 
stipendiary  magistrate,  having  the  entire  control  of  the  police  force  and 
militia  for  the  district  of  Montreal,  embracing  all  the  frontier  towns  in 
Lower  Canada  bordering  upon  the  United  States  ;  to  Lamothe  himself, 
chief  of  police  for  the  city  of  Montreal ;  and  to  Judge  Coursol,  govern- 
ment superintendent  of  police  for  the  city  and  district  of  Montreal. 

The  claimants  also  put  in  evidence  the  report  of  Frederick  William 
Torrance,  esq.,  who  was  commissioned  in  January,  I8G0,  by  the  Cana- 
dian government  to  investigate  and  report  upon  the  proceedings  con- 
nected with  the  arrest,  examination,  commitment,  and  discharge  of 
the  raiders,  the  seizure  of  the  moneys  found  upon  them,  rnd  the  cir- 
cumstances connected  with  the  giving  up  of  such  moneys ;  also,  whe^ner 
there  was  any  refusal  to  execute  any  warrant  for  the  re-arrest  of  the 
accused;  if  so,  ly  whom  and  for  what  reason;  and  generally  to  obtain 
authentic  information  of  all  matters  and  things  connected  with  such 
arrest,  discharge,  and  re-arrest  of  the  i)risoners,  and  the  seizare,  deten- 
tion, and  giving  up  of  the  moneys.  In  this  report,  made  to  the  Cana- 
dian government  and  dated  18th  May,  1805,  ]Mr.  Torrance  went  fully 
over  the  whole  ground  committed  to  his  investigation,  ]\Iessrs.  Coursol 
and  Lamothe  appearing  before  him  and  being  permitted  to  cross-exam- 
ine witnesses.  The  report  recited  the  facts  fouiul  by  him,  including  tlio 
transactions  at  Saint  Albans  substantially  as  alleged  in  the  memorials; 
thetiightof  the  raiders  into  Canada,  closely  pursued  by  tiie  citizens  of  Ver- 
mont; the  arrest  in  Canada  of  several  of  the  raiders  by  the  local  authori- 
ties in  the  district  bordering  upon  Vermont;  the  seizure  upon  the  persons 
of  those  arrested  and  in  deposits  where  secreted  by  them  of  about  887,000 
plundered  from  the  banks  ;  the  subsequent  taking  of  jurisdiction  of  the 
cases  of  the  persons  arrested  by  Judge  Coursol,  and  the  transfer  of 
those  persons  to  Montreal ;  the  examination  of  the  prisoners,  or  some  of 
them,  before  Judge  Coursol,  the  government  of  Canada,  the  United 
States,  aud  the  prisoners  all  being  represented  upon  such  examination, 
and  the  same  having  been  continued  from  the  7th  November  to  the  I3th 
Deceniber,  including  an  adjournment  of  several  weeks  during  tlmt  time 
to  enable  the  defendants  to  make  proof  of  their  relations  to  the  govern- 
ment of  the  Confederate  Stales,  and  to  show  that  their  acts  were  those 
of  lawful  belligerents  and  not  of  private  robbers.  Tluit  on  the  l.'ith 
December  an  objection  was  raised  by  the  counsel  for  the  prisoners  to 
the  jurisdiction  of  Judge  Coursol,  which  objection  had  some  days  pre- 
viously been  made  the  subject  of  a  private  interview  betw^een  Judge 
Coursol  and  the  counsel  for  the  prisoners ;  and  that  thereupon  tht^  pris- 
oners were  immediately  discharged,  aud  the  money  found  upon  them. 


26 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


ill 


to  tlic  amomit  of  about  887,000,  was  surrendered  to  them  hy  the  chief 
of  ])oli(!e,  niidi'r  the  i)rivato  advice  of  Judge  Coursol,  though  without 
any  jiulicial  order  to  that  eilVct.  Tlie  repeat  of  Mr.  Torrance  acquitted 
both  .ludgc  Coursol  and  I\Ir.  Laniothe  of  the  ini[)utation  of  being  iu- 
liuenct'd  by  corrupt  motives.  It  showed  that  after  the  discharge  of  the 
l)risoncrs  by  fludge  Coursol,  new  complaints  were  made  on  behalf  of  the 
claimants  or  their  Government  before  Mr.  Justice  Smith,  on  which  war- 
rants issued  for  the  re-arrest,  and  that  the  execution  of  these  warrants 
was  refused  by  Mr.  Lamothe  and  one  of  his  deputies.  Under  the  in- 
structions of  Sir  George  E.  Cartier,  and  under  the  stimulus  of  a  reward 
ottered  by  the  government  of  Canada  for  the  re-arrest  of  the  prisoners, 
five  of  them  were  shortly  afterwards  rearrested  upon  the  warrants  is- 
sued by  Justice  Smith,  and  on  examination  Avere  discharged  bj^  him,  on 
the  ground  that  their  acts  at  Saint  Albans  were  belligerent  acts  and 
not  criipes  subjecting  them  to  extradition  under  the  treaty  between  the 
United  States  and  Great  Britain. 

]\lr.  Torrance  stated  his  conclusions  upon  the  whole  case  to  the  follow- 
ing effe(!t : 

That  ^Ir.  Lamoihe,  as  chief  of  police,  committed  an  improper  act  iu 
the  surrender  of  the  money  to  the  prisoners  without  official  directions 
from  Judge  Coursol,  as  whose  agent  he  held  the  money,  so  to  deliver  it. 
That  the  oral  and  unofficial  instruction  of  Judge  Coursol  to  Mr.  La- 
mothe to  the  effect  that  the  ])risoners,  if  liberated,  would  be  entitled  to 
the  possession  of  the  money,  was  not  a  sufficient  justihcation  to  Lamothe 
for  its  delivery,  but  was  an  improper  instruction  on  the  part  of  Judge 
Coursol,  and  might  have  mi.sled  Lamothe. 

That  Judge  Coursol,  if  his  decision  that  he  had  no  jurisdiction  of 
the  case  was  a  correct  one,  was  in  fault  for  having  omitted  to  communi- 
cate with  the  Government  before  announcing  such  decision  and  discharg- 
ing the  prisoners,  and  had  laid  himself  open  to  the  imputation  of  a 
grave  dereliction  of  duty  in  a  matter  of  national  importance.  And,  on 
the  other  hand,  if  his  decision  that  he  had  no  jurisdiction  was  errone- 
ous, he  was  liable  to  a  criminal  prosecution  by  indictment  for  malfeas- 
ance in  his  office  by  reason  of  the  discharge  of  the  prisoners. 

Ai'.d,  finally,  that  the  government  of  Canada  was  responsible  to  the 
Government  of  the  United  States  for  the  acts  of  Judge  Coursol  and 
Mr.  Lamothe,  and  was  under  obligation  to  restore  the  booty  brought 
into  the  province  by  the  belligerents. 

Under  this  report  the  government  of  Canada  subsequently  refunded 
to  the  claimants,  to  whom  the  same  belonged,  the  sum  of  about  $58,000, 
the  gold  value  of  the  $87,000  seized  from  the  arrested  raiders  and  sub- 
sequently returned  to  them.  This  payment  did  not  include  anything  ou 
account  of  the  still  larger  sums  plundered  and  carried  otf  by  the  raiders, 
and  which  never  came  to  the  hands  of  the  Canadian  authorities. 

On  the  part  of  the  defence  various  prominent  oflicials  of  Canada  were 
examined,  among  them  Viscount  Monck,  governor-general  of  Canada 


AGENT  S    RErORT. 


27 


tlie  chief 
li  without 
acquitte*! 
being  iii- 
I'ge  of  the 
iiilf  of  the 
hich  war- 
warrants 
er  the  in- 
a  reward 
prisoners, 
rraiits  is- 
y  him,  on 
i  acts  and 
ween  the 

he  follow- 

[)er  act  in 
lirections 
leliver  it. 
)  Mr.  La- 
ntitled  to 
Laniothe 
of  Judge 

lietion  of 

'onimnni- 

ilischarg- 

ion  of  a 

And,  ou 

s  errone- 

nialfeas- 


rofunded 
!i<.jS,000, 
an«l  sub- 
thing  ou 
I  raiders, 
s. 

i(hi  were 
Canada 


at  the  time  of  the  raid ;  Sir  John  A.  McDonahl,  K.  0.  B.,  and  Sir 
George  H.  ( 'artier,  Bart.,  members  of  the  Canadian  ministry  at  the  same 
time,  whose  evidence  tended  to  show  (he  absence  of  any  su<'h  knowledge 
or  information  ou  their  part,  in  regard  to  any  intended  invasion  of  the 
United  States  from  Canada,  as  to  call  upon  them  for  any  precaiitionary 
acts  beyond  tliose  actually  taken  by  the  government,  and  to  siistain 
the  claim  ou  the  part  of  ITer  Majesty's  government,  that  the  provincial 
government  of  Canada  were  chargeable  with  no  lack  of  due  diligence  in 
failing  to  prevent  the  perpetration  of  the  wrongs  alleged  by  raiders  pro- 
ceeding from  Canada  in  the  manner  above  detailed. 

In  argument  it  was  maintained  on  the  part  of  the  claimants  that 
the  evidence  showed  the  raid  to  have  been  plotted  an<l  organized  in 
Canada,  under  the  advice  and  direction  of  Messrs.  C.  C.  Clay,  jr.,  and 
Jacob  Thompson,  confederate  agents  commorant  in  Canada.  That 
the  sympathies  of  the  Canadian  people  and  the  subordinate  officials 
of  the  government  were  largely  favorable  to  the  confederate  cause  and 
hostile  to  the  Government  of  the  United  States.  That  there  was 
no  neutrality  law  in  force  in  Canada  at  the  time  of  the  raid.  That 
in  the  absence  of  such  neutrality  law  and  by  reason  of  the  sympathies 
of  the  Canadian  people  and  ofllicials  with  the  confederates,  the  con- 
federates were  enabled  to  use  Canada  as  a  base  of  operations — the 
scene  of  their  plans  and  arrangements  for  warlike  acts  against  the 
United  States,  as  their  point  of  departure  upon  those  raids,  and  tlieir 
asylum  on  their  return  from  them.  That  supposing  it  conceded  that 
Lord  ]\Ionck  and  all  his  ministry  wei'c  wMthout  fault  on  their  part  per- 
sonally, the  officers  immediately  charged  with  the  maintaining  of  neu" 
trality  upon  the  frontier— Coursol,  Ermatinger,  and  Lamothe — were 
shown  to  have  been  fully  advised  of  the  contemplated  invasions,  and  to 
have  failed  of  their  duty  in  rei»orting  their  knowledge  to  tin'  govern- 
ment, if  they  did  fail  so  to  report  it,  and  in  tauing  measures  to  prevent 
such  invasions. 

That  the  positions  of  Judge  Coursol,  as  superintendent  of  police  for 
the  city  and  district  of  Montreal,  and  of  Colonel  Ermatinger,  the  magis- 
trate charged  with  the  entire  control  of  the  police  ihrra  and, the  militia 
for  the  same  d'strict,  were  such  as  to  make  notice  to  them,  in  fact  notice 
to  the  government,  and  that  their  failure  in  any  respect  to  i)erform  their 
oflicial  duty  was  the  failure  of  tlie  government,  and  charged  Great  Brit- 
ain with  the  consequences  of  such  neglect. 

That  the  government  of  Canada  was  under  obligation  to  constantly 
watch  the  movements  of  these  enemies  of  the  United  States  thus  plot- 
ting the  invasion  of  a  friendly  nation  from  the  Canadian  soil ;  should 
have  arrested  the  persons  engaged  in  such  plots,  or  should  have  expelled 
them  from  Canada;  and,  if  the  law  was  found  insufficient,  should  have 
called  on  Parliament  to  make  it  sufficient.  That  it  was  the  duty  of  the 
Canadian  Parliament  to  have  provided  by  law  the  means  of  preventing 
such  invasions ;  and  that  the  absence  of  such  municipal  law  could  not 


28 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


be  pleaded  in  bar  of  the  international  liability  of  the  government  to 
perform  its  duty  in  preserving  neutrality  towards  the  United  States,  a 
friendly  nation.  That  in  fact  the  govern  me- *•  jf  Canada  actually  did 
nothing  to  prevent  these  violations  of  neu*^-  ...iiy  from  their  soil,  though 
with  abundant  reason,  irrespective  of  proof  of  actual  notice  or  knowl- 
edge, to  apprehend  such  invasions  by  the  confederates  commorant  in 
Canada ;  and  that  the  actual  notice  of  such  intentions,  brought  home  to 
Coursol,  Ermatinger,  and  Lamothe,  was  a  notice  to  the  government  itself, 
which  was  chargeable  with  the  nonfeasance  or  malfeasance  of  those 
officers.  That  the  government  of  Canada  was  held  to  "due  diligence" 
to  prevent  military  operations  by  the  enemies  of  the  United  States  from 
the  soil  of  Canada,  as  a  base  of  operations,  against  the  United  States- 
That  the  measure  of  this  diligence  was  to  be  determined  by  the  nature 
of  the  danger  to  be  apprehended  frotn  the  neutral  soil,  the  magnitude 
of  the  danger  and  the  results  of  negligence,  the  means  of  the  United 
States  to  resist  or  prevent  it,  the  sympathy  and  aid  which  the  enemies 
of  the  United  States  might  receive  in  Canada,  and  the  unfriendliness 
of  the  people  of  Canada  to  the  United  States,  the  fact  of  plans  for  former 
raids  known  to  the  government  of  Canada,  and  the  hostile  speeches  and 
avowed  intentions  of  the  enemies  of  the  United  States,  found  in  large 
numbers  in  that  province.  That  all  these  considerations  combined  to 
require  strict  diligence  on  the  part  of  the  Canadian  government  to  i)re- 
vent  hostile  incursions  into  the  United  States  across  the  long  and  unpro" 
tected  frontier  between  those  States  and  Canada. 

The  counsel  for  the  claimants  insisted  that  the  Canadian  government 
had  entirely  failed  in  the  performance  of  these  international  duties,  and 
that  by  reason  of  such  failure  Great  Britain  was  liable  to  the  United 
States  for  the  injuries  inflicted  by  the  raiders.  That  the  United  States 
had  done  all  in  their  power,  and  all  which  they  were  required  by  inter, 
national  latv  to  do,  to  i)rotect  themselves  against  such  dangers  from 
Canada ;  and  that  the  Government  of  those  States  haa  in  their  diplo- 
matic correspondence  preferred  such  claims  against  the  government  of 
Her  Britannic  Majesty,  and  had  fully  provided  by  the  treaty  for  tlie  sub- 
mission of  them  to  the  decision  of  the  commission. 

The  counsel  for  the  claimants  cited  the  opinion  of  Count  Sclopis  upon 
the  question  of  due  diligence  in  the  tribunal  at  Geneva;  also,  on  the 
same  subject,  1  Phill.,  21,  230  to  232 ;  3  id.,  201  to  237 ;  Halleck, 
318,  524.  They  also  cited  various  passages  from  the  diplomatic  corre- 
spondence between  the  governments  of  the  United  States  and  Great 
Britain  during  the  war,  and  from  the  papers  before  the  Geneva  tribunal, 
as  well  as  from  the  protocols  to  the  treaty  of  8th  of  JMay,  1871,  to  show 
that  the  Government  of  the  United  States  had  always  claimed  the 
British  government  responsible  for  the  injuries  to  their  citizens  by  the 
St.  Albans  raid,  and  that  these  injuries  occupied  a  i /ominent  place 
among  the  claims  of  citizens  of  the  United  States  against  Great  Britain 


^m 


f( 

s 

Ij 


AGENTS    PT^.PORT. 


29 


■mneiit  to 
States,  51 
tually  (lid 
il,  though 
[)!•  kiiowl- 
iioiant  in 
t  home  to 
eut  itself, 
of  those 
liligenee" 
ates  from 
d  States, 
le  nature 
laguitude 
e  United 
3  enemies 
endhness 
or  former 
3(;hes  and 
in  hirge 
ibined  to 
it  to  pre- 
id  unpro" 

ernment 
ties,  and 
e  United 
d  States 
by  inter. 
L'rs  Iroiu 
ir  diplo- 
mient  of 
the  sub- 
pis  upon 
,  on  the 
Halleck, 
ic  corre- 
d  Great 
ribunal, 
to  sliow 
ued  tlie 
s  by  the 
it  place 
Britain 


for  acta  committed  daring  the  war,  for  the  purpose  of  passing  upon 
wliich  this  commission  was,  Instituted. 

On  the  ])art  of  the  defence  it  was  mamlained  by  ITer  Majesty's  coun- 
sel that  the  proofs  in  the  ease  showed  no  state  of  facts  importing  any 
lack  of  care  or  diligence  on  the  part  of  the  authorities  of  Canada  in  the 
maintenance  of  their  international  obligations.  That  the  persons  who 
committed  the  acts  complained  of  at  Saint  Albans  did  not  enter  the  States 
from  Canada  in  a  body,  nor  with  any  military  array  or  equipment ;  that 
they  passed  over  the  lines  from  Canada  individually  or  in  small  par- 
ties, with  the  appearance  and  in  the  manner  of  ordinary  travellers ; 
that  the  authorities  of  Canada  had  no  reason  to  suppose  them  engaged 
in  a  hostile  expedition  against  the  United  States,  and  that  no  grounds 
existed  for  their  arrest  or  detention  by  those  authorities  ;  that  there 
was  nothing  in  their  appearance  or  movements  to  excite  suspicion  ;  that 
the  Government  of  the  United  States  had,  in  1802,  voluntarily  annulled 
its  own  passport  regulations  which  had  previous  to  that  time  required 
all  persons  coming  from  Canada  into  the  United  States  to  be 
provided  with  passports  countersigned  by  t' ^  United  States  con- 
sul-general at  Montreal;  and  that  from  tha^  time  until  after  the 
Saint  Albans  raid  thera  was  no  regulation  interfering  with  the  free 
and  ordinary  passage  of  travellers  across  the  line.  That  the  degree  of 
diligence  contended  for  by  the  counsel  for  the  claimants  would  have 
required  of  the  Canadian  authorities  a  careful  examination  of  every  per- 
son travelling  from  Canada  to  the  States  as  to  his  character  and  objects, 
and  would,  in  effect,  have  abolished  the  free  intercourse  between  the 
provinces  and  the  States  which  had  existed  under  the  full  assent  and 
approval  of  both  governments.  That  from  the  dijilomatic  correspond- 
ence between  the  two  governments  it  appeared  that  the  United  States 
had  never  preferred  a  claim  of  pecuniary  liability  against  Great  Britain 
on  account  of  this  raid  ;  but,  on  the  contrary,  the  American  Secretary 
of  State,  Mr.  Seward,  had  on  different  occasions  expressed  his  satisfac- 
tion with  the  action  of  the  Canadian  authorities,  and  had  i)articularly 
expressed  through  the  British  legation  his  thanks  to  Lord  Monck,  the 
governor-general,  for  the  assistance  rendered  by  the  Canadian  authori- 
ties toward  the  detection  and  arrest  of  the  offenders.  That  in  the  pro- 
tocols to  the  treaty,  in  the  four  preliminary  notes  between  Mr.  Secretary 
Fish  and  Sir  Edward  Thornton,  on  the  subject  of  the  formation  of  the 
Joint  High  Commission  which  framed  the  treaty,  and  by  the  contiden- 
tial  memorandum  or  brief  sent  by  Secretary  Fish  to  General  Scheuck 
of  that  commission  for  the  information  and  guidance  of  himself  and 
colleagues,  there  was  no  allusion  to  the  Saint  Albans  raid,  much  less  to 
any  claims  on  the  part  of  the  United  States  growing  out  of  the  acts  com- 
mitted or  omitted  by  the  British  government  in  relation  thereto.  That 
the  only  explanation  that  could  be  given  of  this  omission  was  that  the 
Government  of  the  United  States  did  not  consider  itself  entitled 
to  make  any  international  demands  in  the  pr'^mises.    That  in  fact  the 


30 


AMERICAN-URITISn    CLAIMS   COMMISSION. 


proofs  faihMl  to  sliow  that  tlie  raid  was  organiztMl  in  Canada;  tliat  tlio 
raiders  proourcMl  arms  or  arnmiiuitiou  uhere,  or  did  any  oilier  act  witliiu 
Her  Majesty's  donnnions  in  violation  other  just  neutrality,  which  was 
known  to,  or  with  due  dilij^enee  might  have  been  known  to,  the  Canadian 
authorities.  That,  on  the  contrary,  the  evidence  stron<;ly  tended  to 
shoAv  that  the  raid  was  in  fact  organized  within  the  United  States,  and 
that  no  act  compromising  British  neutrality  Avas  committed  by  the 
raiders.  That  no  liability  was  shown  by  the  evidence,  and  none  was 
claimed  by  the  claimants'  counsel  to  exist  against  Great  J>ritain  by 
reason  of  the  omission  alleged  in  the  memorials  of  the  Canadian  authori- 
ties to  surrender  the  raiders  under  the  extradition  treaty.  That  the 
acts  of  the  raiders  were  belligerent  acts,  and  as  such  allorded  no  ground 
lor  extradition. 

iler  Majesty's  counsel  cited  the  opinion  of  Count  Sclopis  in  the  tribu- 
nal at  Geneva ;  also,  I  Phillimore,  230  to  232. 

The  commission  unanimously  disallowed  all  the  claims. 

Mr.  Commissioner  Frazer  read  an  opinion,  in  which  I  am  advised  that 
the  majority  of  the  commission  concurred,  as  follows : 

I  may  not  be  prepared  to  say  that  Groat  Britain  used  that  diligence  to  prevent 
hostile  expeditions  from  Canada  as^ainst  the  United  States  which  should  ho  exercised 
Ly  a  neutral  and  friendly  neiglbor;  but  in  the  view  which  I  take  of  these  claims 
this  ([uestion  is  not  important,  and  need  not,  therefore,  be  decided. 

The  raid  upon  Saint  Albans  was  by  a  small  body  of  men,  who  entered  that  place 
from  Canada  without  anything  to  indicate  a  hostile  purpose.  They  came  not  in  an 
organized  form,  so  as  to  attract  attention,  but  ap[)arently  as  peaceable  individuals 
travelling  by  railroad  and  not  iu  company,  and  stopped  at  the  A'illago  hotels.  That 
there  was  a  preconcerted  hostile  purpose  is  unquestionable,  but  this  was  so  quietly 
formed,  as  it  could  easily  be,  that  even  at  this  day  the  evidence  does  not  disclose  the 
place,  the  time,  nor  the  manner.  The  Government  of  the  United  States  was  at  the 
time  diligent,  by  nuians  of  its  detectives,  to  know  what  mischievous  expedition  might 
be  organized  by  rebels  in  Canada,  but  it  failed  to  discover  this  one  until  after  it  had 
done  its  work.  Such  was  the  secrecy  with  which  this  particular  aft'air  was  planned, 
that  I  cannot  say  it  escaped  the  knowledge  of  Her  Majestv'5  olKicers  in  Canada  because 
of  any  want  of  diligence  on  their  part  which  may  possibly  have  existed.  I  think 
rather  it  was  because  no  care  which  one  nation  may  reasonably  re<|uire  of  another  in 
such  cases  would  have  been  sutticiout  to  discover  it.  At  least  the  evidence  does  not 
satisfy  me  otherwise. 


The  Lake  Erie  raid. 

"Walter  Oliver  Ashley  vs.  Great  Britain,  ^o.  19. 

Tliis  cas3  was,  in  general  character,  and  in  most  of  the  circumstances 
accompanying  it,  analogous  to  the  cases  growing  out  of  the  Saint 
Albans  raid  above  reported.  The  evidence  on  each  side  in  the  Saint 
Albans  raid  cases  was  invoked  i»'^o  this  case  j  and  the  case  was  argued, 
submitted,  and  decided  in  connection  with  those  cases. 

The  memori.al  alleged  that  some  months  prior  to  September,  1864, 
confederate  refugees,  domiciled  or  commorant  in  the  provinces  of  Can- 
ada, there  planned  and  organized  a  warlike  enterprise  of  forcibly  appro- 


AGENT  S    KKPORT. 


31 


;  tliiit  tlio 

U't  within 

/m 

\viii(tli  wa.s 

Caiiadiiiii 

tended  to 

w 

(tates,  and 

'd   by  tlie 

m 

none  was 

iritain  by 

n  autUoi'i- 

That  the 

no  j-Tound 

the  tribu- 

vised  that 

.it^^H 

to  prevent 

'i 

)o  exercised 

i] 

lesu  claims 

'{ 

that  place 

e  not  in  an 

-' 

individuals 

)tels.    That 

s  so  quietly 

liscldse  the 

was  at  the 

'1 

ition  raif^lit 

fter  it  had 

LIS  planned, 

ida  because 

'^ 

I  think 

another  in 

% 

;e  does  not 

jniatinfj  steamers  of  tlie  United  States  on  Lake  Kiie,  and  nsinj;'  lh«Mn  for 
the  captnre  of  the  United  Stat«,'S  war-steamer  Miehi;;an,  tiu-n  sta. 
tioned  on  Lake  Erie.  Tiiat  by  sneh  eajdnre,  tlie  phm  eontemphited  the 
release  of  some  ;J,()UU  confederate  prisoners  coniined  on  .lolinson's  Lsland, 
in  Lake  Erie,  near  the  American  shore  ;  and  also  to  obtain  «'ontrol  of 
the  hikes  and  power  to  destioy  and  pilla,t;e  the  cities  of  tlie  United 
States  borderinjjf  thereon.  That  the  existence  of  the  phm  for  snch  ex- 
pedition was  known  to  the  Canadian  anthorities  tor  many  montiis  belbro 
September,  1804,  and  that  snch  knowledge  was  commnnicated  by  the 
governor-f^eneral  of  Canada,  in  November,  IHU'o,  to  Her  Majesty's  min- 
ister at  VVasiiinfjton,  who  communicated  it  to  the  War  J)t'partment  of 
the  United  States,  but  that  no  steps  were  taken  by  Her  Majesty's  gov- 
ernuuMit  for  said  provinces  to  prevent  the  execution  of  the  plan. 

That  on  the  10th  of  Sei>tem  ber,  1804,  about  thirty  conle(h'rate  sol- 
diers came  on  board  the  steamer  Thilo  ParHons,  a  i)rivate  freight  and 
l)assenger  vessel  of  the  United  States,  at  certain  Canadian  ports,  with 
concealed  weapons  shipped  as  freight,  the  vessel  being  then  on  her  reg- 
ular tri[>  from  Canadian  i)()rts  to  Sandusky,  Ohio.  That  immediat«'ly 
after  the  vessel  had  crossed  the  boundaiy  line  between  the  Canadian 
provinces  and  the  States,  this  party  rose  with  arms  upon  the  crew,  took 
forcible  and  armed  possession  of  the  vessel,  nuiking  prisoners  the  oili- 
cers  and  crew,  threw  overboard  and  destroyed  a  large  <iuantity  of  the 
cargo,  seized  the  nu)ney  of  the  claimant,  an  oHicer  and  part  owner  of 
t!ie  vessel,  shaped  the  course  of  the  vessel  for  the  Avar-steamer  Michi 
gan,  and  on  their  way  overhauled,  seized,  and  sunk  in  American  waters 
another  private  steamer  of  the  United  States,  the  Island  Queen,  but, 
failing  to  receive  expected  signals,  abandoned  their  project  of  capturing 
the  Michigan,  raised  theconfederatetlag  upon  thelMiilo  Parsons, changed 
her  course,  and  proceeded  toward  Sandwich,  in  Canada.  That  on  ar- 
riving at  Sandwich  on  the  20th  of  September,  they  plundered  the  Philo 
Parsons  while  lying  in  British  waters,  landed  their  booty  in  the  province 
of  Canada,  sunk  or  partially  sunk  the  steamer,  and  retreated  in  a  body 
within  the  province  of  Canada  with  the  plundered  property  taken  from 
,  the  vessel. 

The  memorial  contained  allegations  similar  to  those  contained  in  the 
memorials  in  the  Saint  Albans  cases  as  to  the  asylum  afforded  by  Canada 
to  the  retreating  raiders;  as  to  the  negligence  of  the  Canadian  authori- 
ties in  failing  to  prevent  the  expedition,  and  also  iu  failing  to  take 
proper  steps  in  apprehending  the  raiders  and  surrendering  them  under 
the  extradition  treaty,  and  iu  restoring  the  property  captured  and  car- 
ried off  by  them. 

The  claimant  claimed  himself  the  assignee  of  all  the  other  owners 
and  claimed  damages  in  the  premises,  $10,01)3. 

The  evidence  in  the  case  sustained  the  allegations  in  the  memorial  as 
to  the  circumstances  of  the  capture  and  destruction  of  the  vessels 


82 


AMERICAN-BUITISII    CLAIMS    COMMISSION. 


iiiiinod,  iiw\  the  seizure  of  the  property  allosred,  and  as  to  the  assign- 
ment of  tlie  claims  of  other  owners  to  the  clai(nant. 

Upon  the  question  of  due  diligence  by  the  Canadian  authorities,  the 
claim  was  rested  on  both  sides  substantially  on  the  evidence  taken  in 
the  Saint  Albans  cases,  and  the  arguments  of  the  respective  counsel  upon 
this  question  were  substantially  those  urged  in  the  Saint  Albans  cases, 
with  the  additional  point,  urged  on  behalf  of  the  defence,  that  the  Cana- 
dian government  had  promptly  given  notice  to  the  Governinent  of  the 
United  States  of  the  information  received  by  them  as  to  the  contem- 
l)lated  raid,  thereby  putting  the  United  States  Government  fully  upon 
its  guard. 

The  claim  was  unanimously  disallowed. 


The  Calcutta  saltpetre  cases. 

Frederick  T.  Bush  and  others    .<*.  Great  Britain,  No.  11. 
Thomas  H.  Wales  and  others  vs.  same.  No.  12. 
Kichard  P.  Buck  and  others  vs.  same,  No.  10. 
Curtis  »&  Peabody  vs.  same.  No.  18. 

These  claims  were  all  of  substantially  the  same  character,  arising  on 
the  same  state  of  facts,  and  were  heard  on  the  same  proofs  and  argu- 
ments. 

The  claimants  in  No.  11  were  the  owners  of  tlie  American  ship  Dar- 
ing; those  in  No.  12,  of  the  American  ship  Templar;  those  in  No.  10, 
of  the  American  bark  Patmos,  and  those  in  No.  IS,  of  a  portion  of  the 
cargo  of  the  Daring,  consisting  of  linseed,  saltpetre,  jute,  and  gunny- 
bags. 

The  tliree  vessels  above  named  were,  on  the  27th  December,  1801,  in 
the  port  of  Calcutta,  in  British  India.  The  Daring  had  at  that  date  taken 
on  board  a  quantity  of  saltpetre,  as  part  of  her  cargo,  obtained  a  clear- 
atice  therefor,  and  had  j^aid  the  export  duty  thereon.  After  that  date 
she  completed  the  taking  in  of  the  remainder  of  her  cargo,  consisting 
of  linseed,  jute,  &c.,  but  including  no  saltpetre,  and  was  completely 
laden  on  the  3d  January,  1802. 

The  Templar  had  her  cargo  all  on  board,  including  a  quantity  of 
saltpetre,  on  the  27th  December. 

The  Patmos  also  was  fully  laden,  including  2,000  bags  of  saltpetre,  on 
the  27th  December. 

On  the  30th  November,  1801,  the  following  proclamation  was  issued 
by  Her  Britannic  Majesty  : 


by  the  queen— a  proclamation. 

Victoria  R. 

Wliereas  in  and  by  a  certain  statute  made  and  passed  in  the  Parliament  beld  in  the 
Bixtecntli  and  seventeenth  years  of  onr  reign,  and  intituled  "  Tlie  Customs  Consolidation 
Act,  1853,"  it  is,  amongst  other  things,  declared  and  euacted  as  follows ;  that  is  to  say : 


AGENT  8    HKl'OKT. 


3.'5 


10  iissign- 


rities,  the 
1  taken  in 
nsel  upon 
ins  cases, 
the  Cana- 
jut  of  the 
e  contein- 
ully  upon 


"  Tim  fcillowiiig  jjoddH  may,  by  piocliiiiiatioii  or  iiiilur  in  council,  bo  jtrohibitcil  citliiT 
to  be  exported  or  carried  ci>ast\vi»4c:  Anns,  aninninition,  and  gunpowder,  military  and 
naval  stores,  and  any  articbss  wiiirh  HiaMiijcsty  shall  ,iud;;e  capable  of  beinji;  converted 
into  or  nntde  nscfnl  in  im^reasiii;;  the  quantity  of  military  or  naval  storos,  provisions, 
or  any  sort  of  victual  which  may  be  nsed  as  food  by  num ;  aiul  if  any  jiroods  ho  pro- 
hibited shall  be  exixirtcd  from  tho  United  Kinjfdom  or  carried  coastwise,  or  bi^  water- 
bornt!  to  be  so  i^xiiortcd  or  carried,  they  shall  be  forfeited." 

And  whereas  we  have  thou<;ht  lit,  by  and  with  tho  iidvico  of  our  privy  council,  to 
prnhiiiit  either  to  be  exported  or  (tarried  coastwise  the  articlt!S  hennnafter  mentioned, 
(beinj^  articles  which  we  Judije  capable  of  beinjj  converted  into  or  maile  useful  in 
increasing  Hie  quantity  of  military  or  naval  stores,)  we,  therefore,  by  and  with  tho 
advice  of  our  privy  council,  and  by  this  our  royal  proclamation,  do  order  and  dir(M',t 
that,  from  and  after  tim  date  hereof,  all  ^uu|)owder,  Halt[)etro,  nitrate  of  soda,  and 
brimstone,  shall  be,  and  the  sann;  are  hereby,  prohibited  either  to  be  exported  from  tho 
Unitt'd  Kiujfdom  (u-  <arried  coiistwise. 

(Jiven  at  our  court,  at  Wimlsor,  this  thirtieth  day  of  November,  in  the  year  of  our 
Lord  one  thousantl  eight  hundred  and  sixty-ono,  and  iu  the  twenty-lifth  year  of  our 
rei;rn. 

(jlod  save  the  Queen. 


On  tho  27th  December,  ISfil,  the  following  ordinance  was  promul- 
gated by  tho  governor-general  of  India: 


irismg  on 
tad  ai'gu- 


^hip  Dar- 
n  No.  IG, 
on  of  the 
d  gunny- 

18G1, in 
ate  taken 
il  a  clear- 
hat  date 
onsisting 
mipletely 


antity  of 
petre,  on 
IS  issued 


teld  in  the 
isulidatioa 
is  to  say : 


LK(JISLATIVK. 

The  followin}^  ordinance,  passed  by  the  <;ovcrnor-general  of  India  on  this  date,,  "iv 
heieby  promulgated  for  genera'i  information  : 

OHDINANCK. 

AN  OllDINANCE  to  proliibil  tho  oxportation  of  saltpntro,  oxcopt  la  Britisli  vi-ssola  bound  to  elio 
ports  111'  London  or  Livcrpoid,  pii.sHod  by  tbo  <;ovfi-nor-(?i'neriil  of  India,  undfi-  tho  provisiurs  of  ^4 
and  '25  Vic,.,  cap.  07,  on  tlie  -JTth  Dfconibcr,  l*!(il. 

Whereas  information  has  reached  the  governor-general  by  public  telegraph  tbiit)  the 
exportation  of  saltpetre  from  the  United  Kingdom  has  been  interdicted  by  royal  pn)f- 
lamation,  and  it  is,  therefore,  expedient  that  tho  exportation  of  saltpetre  from  India, 
except  in  British  vessels  bound  to  tho  port  of  Loudon  or  to  the  port  of  LivcriK>ol, 
should  be  i)rohibited:  It  is  ordered  as  follows  : 

I.  Until  the  governor-general,  in  council,  shall  otherwise  order,  it  shall  not  Ik?  law- 
ful for  any  person  to  export  siiltpetre  from  any  port  of  Her  Majesty's  territwies  in 
India,  except  in  a  British  vessel  bound  either  to  the  port  of  London  or  to  tlwi  po^rt  of 
Liverpool. 

IL  If  any  person  shall  attempt  to  export  saltpetre,  contrary  to  the  provisions  of  this 
ordinance,  the  same  shall  be  seized  and  confiscated. 

III.  No  collector  or  other  officer  of  the  customs  shall  after  this  date  grant  a  i)a8S  or 
permit  for  tho  exportation,  or  shipment  for  exportation,  of  saltpetre  from  any  port  of 
the  said  territories,  except  iu  a  British  vessel  bound  for  the  port  of  London  or  for  the 
port  of  Liverpool. 

IV.  Nothing  in  this  ordinance  shall  extend  to  any  saltpetre  shipped  prior  to  this 
date,  or  to  any  saltpetre  for  the  exportation  or  shipment  whereof  a  permit  or  pass  has 
been  granted  on  or  before  this  date. 

W.  GREY, 

Secretary  ta  Governor  of  India.' 
3h 


3; 


AMDKKAN-IJRITISII    CLAIMS    COMMISSION', 


On    tlic  .'5(1  Jnimary,  ISOL',  tlio  fMll()\viii}>:  iiotiliciitiitn  was  IssimmI  and 
juUlitioiial  ordiinuioc  was  proiiiulgatcd  l>y  tlio  {iOvi'iiioryciRTal  of  India: 

NOTiriCAiroN. 

FouT  Wli.MAM,  Janmrii  '.\,  IHfia. 
Wliciviis  it  is  (Iccliirod  by  tlio  onliiianci!  passi-d  Ity  tlio  nov<frnor-;;()iicnvl  of  Iiidiii,  on 
Mif.27ili  ni'cciiiiu'r,  Hi>l,tiiiit  until  till' ^rovoriioi-ntMionii,  ill  (•ouiiciij.sliiiiiotiii'rwiMconlcr, 
it  HJiall  not  ii((  Idwiiil  for  any  jusrson  to  export  HaUpi-trt)  tVoni  any  part  of  lli'r  Miijcsty's 
territiirics  in  Intlia,  cxctpt  in  Uritiwli  vcwbcIh  bound  ('ith«!r  to  tlio  port  of  London  or  t» 
tht' port  of  riivcr[)ool ;  ami  whoroan  it  appears  from  instrnctioii  sinco  nuu-lvi'd  from 
Htu- Maji'sty's  ;;ov()rnmiint  tbat  tbo  proliiitition  to  export  sallpctri!  from  India,  so  far 
as  ro^jards  Mritisii  vi'ssids  is  to  apply  only  to  sucli  vcsstds  wliun  btnind  to  ports  not 
within  the  Cniti-d  KinM;dom,  the  ffovornor-gcneral,  in  (ionneii,  is  pleasod  to  order,  ac- 
cordini;ly,  that  it  shall  bo  lawful  to  export  saltpetre  on  Hritisli  vessels  Ijound  to  any 
port  of  tilt)  United  Kiiif^dom,  anythiiij;  in  tho  said  ordinance  notwithstaiidin)^. 
liy  order  of  the  ^ovt)rnor-<j;ont)ral,  in  council. 

W.  (Jlii:v, 
Secretary  to  Ihr  Govvriuncni  of  India. 


I 


li 


LEOLISLATIVK. 

Janmjai!Y  :!,  lrt(ii>. 
The  f<dlowing  ordinance,  passed  by  tho  governor-general  of  India,  on  this  date,  is 
promulgated  for  general  intbrniatiou  : 

AN<)Rl)IX.\X<!i';  to  priitiibit  fhoiix])ortiitioiiof  aaltpctro,  cxcopt  in  Britisli  vessels  bnuiiiltn  the  rTiiited 
Kiii^'iloiii,  piisseil  l)y  ll>o  K'lvcrnor-gcucral  of  Iiidiu,  iiuilor  tlio  pi'uvisiuuti  ut'  d4  uiid 'Jj  Vic,  r.  07,  o« 
tlie  tliinl  of  Januury,  ISOi. 

Whereas  in  a  dispatch  from  tlio  secretary  of  state  for  India,  datud  the  third  DocDni- 
ber,  IrT)!,  the  instructions  of  Her  Majesty's  governnieiit  havt,  b(!en  receive<l  by  tho 
governor-general,  in  council,  to  take  iminoLliate  muasiiros  for  inoventing  the  expDrta- 
tion  of  saltpetre  from  India,  except  in  British  vtsssels  bound  for  tho  ports  in  the 
United  Kingdom,  and  to  cause  any  saltpetre  which,  previously  to  tho  receipt,  and  con- 
trary to  till!  coiiilitions  of  tho  said  instructions,  may  have  been  placed  on  bi)ard  vessels 
still  in  j)ort,  to  bo  re-landed;  and  whereas,  in  conse(|ueiice  of  the  said  instructions,  the 
governor-general,  in  council,  has  this  day  ordered  that  it  shall  bo  lawful  to  export  salt- 
petre on  British  vessels  bound  to  any  port  of  the  United  Kingdom,  anything  in  the  ordi- 
nance of  the  governor-general  the  27th  December,  1831,  notwithstanding ;  and  whereas 
jt  is  expedient  to  make  further  pr<'.i>''on  for  giving  etlect  to  the  instructions  now  re- 
ceived iioin  Her  Majesty's  governnuinL     It  is,  therefore,  ordered  as  follows  : 

I.  Until  the  governor-general,  in  conueil,  shall  otherwise  order,  it  shall  not  be  lawful 
to  (sxport  saltpetre  from  any  pail  ■.•.!  iler  Majesty's  territories,  except  in  a  British  ves- 
uel  bound  to  a  port  of  the  United  Kingdom. 

II.  All  saltpetre  which  previously  to  the  promulgation  of  this  ordinanct*  may  have 
been  placed  for  exportation  on  any  vessel  still  being  within  a  port  of  Her  Majesty's  ter- 
rit(uies  in  India,  and  not  being  u  British  vessel  bound  for  a  port  of  tho  United  Kingdom, 
shall  be  re-landed. 

HI.  No  collector  of  customs  or  other  officer  shall  grant  a  port-clearanco  to  any  ves- 
sel having  ou  board  saltpetre,  other  than  a  British  vessel  bound  for  tho  United  Kingdom. 

IV.  If  any  person  shall  attempt  to  export  saltpetre  contrary  to  the  provisions  of  this 
ordinance,  the  same  shall  be  seized  and  confiscated. 

V.  Any  custom-house  officer  may  without  warrant  seize  saltpetre  liable  to  confisca- 
tion under  this  ordiuauce. 

W.  GREY, 
Secretary  to  the  Government  of  India. 


^ 


fc-.. 


AG  i:\TS    REPORT. 


3'. 


>hm1  iind 
)!'  India: 


1 :5.  IH(W. 

■  liidiii,  oil 
rt'isd  order, 
r  M;i,)i"Hty'H 
)ii(loii  or  t» 

■  ivcil  tVoin 
iiU:i,  ««  I'll'' 
(,  ports  not 
)  ordt^r,  ac- 
iiml  to  any 
n^'• 

i;hv. 

(  (if  India. 


this  <liiti),  is 

lilt"  till)  niiit<"l 
Vic-.,  f.  »i7,  oil 

liiril  Decuni- 
ivi'tl  l>y  tli« 
,lu'.  oxporta- 
ports  in  the 

pt,  and  con- 
id)  iinl  vessels 
luctions,  the 
)  export  siilt- 
iii  thiMU'di- 

ind  wlicroas 
Itions  now  re- 
|s : 

|u)t  bi)  lawful 
British  vos- 

|ic«  may  havo 
Majesty's  ter- 
tcd  Kingdom, 

|ce  to  any  ves- 
ted Kiuj^dom. 
nsions  of  this 

ke  to  coufisca- 

Igrey, 

ent  of  India. 


TIm'  vcMsrls  ill  qiU'stioii  liiiviiij;  their  car^^ocs  on  Ixtanl.  and  tlii-ir  nnis 
tcrs  iM'lit'viiif;- that   tlic  piohihitiitii  woiihl  he  hut  tt'iiiixnary,  it  was  net 
dt'i'iiH'd  I'XiM'diciit  to  uidoad  ilir  siiltiu'tro  which  hiy,  in  v.u-h  case,  at  tlit- 
l»ottom  of  tho  hoi  ,  thus  n'(|uiri!i<?  the   uiihulin^^  of  the  entire  car^-o ; 
and  the  vessels  a(U'oidiiinI.v  leinained  in  port  atC-alciitta  until  -*Sth  I'eh 
riiary,  ISCt'J, on  whieh    ay  the  several  ordiiumees  prohibitino-  the  export 
ation  of  saltpetre  wen'  revoked.     They  were  respectively  ready  to  sail 
with  their  earj-oes,  but  for  tlie  prohibition,  on  the  adjHth,  and  -M»th  days 
of  .lauuary,  respectively;  and  the  chiini  in  each  case  was  for  deinurrajie, 
from  the  time  the  vessels  were  respectively  ready  to  sail  until  permitte«l 
to  sail  by  the  revocation  of  the  ordinances,  it  beinj,^  averred  in  each  cas«' 
that  the  demurrage  thus  claiine<l  was  less  than  the  expense  of  unladin;;- 
tlu'  car<;()  would  have  been. 

The  masters  of  the  respective  vessels  duly  protested  before  the  I'liited 
States  consul  j;eiieral  at  Cahuitta  against  the  prohibition  of  exportation 
of  saltj)etre,  and  ajjainst  the  detention  of  their  vessels  by  occasion 
thereof,  claiiniufj  their  damages  for  the  demurrage.  The  claims  were, 
during  the  year  IStili,  made  the  subject  of  diplomati(5  correspondence 
between  the  two  governments,  the  United  States  claiming  compensation 
on  behalf  o<'  Mie  parties  aggrieved,  and  the  British  government  vindi- 
Ciitiiig  the  legality  of  the  ordinancesand  of  the  prevention  of  the  sailing 
of  the  vessels  with  the  saltpetre  on  board  during  the  continuance  of  such 
ordinances. 

The  provisions  of  the  statute  of  IGth  and  I7th  Victoria,  under  which 
tlie  royal  i)roclamatiou  was  issued,  and  ui)on  which  the  ordinances  of  the 
governor-general  were  founded,  are  re(*ited  in  the  royal  proclamation 
above  given.  The  convention  between  the  United  States  and  Great 
Tiritain  of  July  3,  181a,  continued  by  the  conventions  of  LM)th  Octolier, 
1818,  and  of  0th  August,  1827,  and  in  force  at  the  time  of  the  acts  in 
question,  are  as  follows  : 

AuTicr.K  III.  His  Britannic  Miijesty  iif^recs  that  the  vessels  of  tin;  United  States 
of  America  shall  be  admitted  and  hospitably  received  at  tin*  principal  settlements  of 
the  British  <lominions  in  tin?  East  Indies,  videlicet:  Calcntta,  Madras,  IJombay,  and 
I'rince  of  Wales'  Island  ;  and  that  the  citizens  of  the  saiil  United  States  may  freely 
carry  on  trade  between  the  said  principal  s<!ttlements  and  the  said  United  States,  in 
all  articles  of  which  the  importation  and  exportation,  respectively,  to  and  from  the 
said  territories,  shall  not  be  entirely  prohibited ;  provided  only,  that  it  shall  not  be 
lawful  for  them,  iu  any  time  of  war  between  the  British  government  and  any  state  t>r 
power  whatever,  to  export  from  the  said  territories,  without  the  special  permission  of 
the  British  government, any  military  stores  or  naval  stores,  or  rice.  The  citizens  of  the. 
United  States  shall  pay  for  their  vessels,  wheu  admitted,  no  higher  or  other  duty  or 
charge  than  shall  be  payable  on  the  vessels  of  the  most  favored  European  nations,  and 
they  shall  pay  no  higher  or  other  duties  or  charges  on  the  importation  or  exportation 
of  the  cargoes  of  the  said  vessels  than  shall  bo  payable  on  the  same  articles  when  im- 
ported or  exported  iu  the  vessels  of  the  most  favored  European  nations. 

But  it  is  expressly  agreed  that  the  vessels  of  the  United  States  shall  not  carry  any 
articles  from  the  said  principal  settlements  to  any  port  or  place,  except  to  some  port 
or  place  iu  the  United  States  of  America,  where  the  same  shall  be  uuladen. 


3G 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


It  is  iiIho  understood  that  tbo  permission  granted  by  this  article  is  not  to  extend  to 
iillow  the  vessels  of  tbo  United  States  to  carry  on  any  part  oftlie  coasting  trade  of  the 
said  Uritislj  territories;  bnt  tlie  vessels  of  the  United  States  having,  in  the  first  in- 
stance, proceeded  to  one  of  the  said  principal  se^^^tleinents  -ii  the  British  dominions  in 
the  East  Indies,  and  then  going  with  their  original  cargoes,  or  part  thereof,  from  one 
of  the  said  principiil  settlements  to  another,  shall  not  bo  considered  as  carrying  on  the 
coasting  trade.  The  vessels  of  the  United  States  may  also  touch  for  refreshment,  bnt 
not  for  commerce,  in  the  course  of  their  voyage  to  or  from  the  British  territories  iu 
India,  or  to  or  from  the  dominions  of  the  Emperor  of  China,  at  the  Cape  of  Good  Hope, 
the  island  of  St.  Helena,  or  such  other  places  as  may  bo  in  the  jiossession  of  Great 
Britain  in  the  African  or  Indian  seas;  it  being  well  understood  that  in  all  that  regards 
this  article  the  citizens  of  the  United  States  shall  be  subject,  in  all  respects,  to  the  laws 
and  regulations  of  the  British  government  from  time  to  time  established. 

The  proclamatiou  and  ordiuances  in  question  were  promulgated  by 
oceasion,  and  iu  view  of  the  arrest  on  the  high  seas  of  tlie  Britisli  mail- 
steamer  Trent,  and  the  taking  from  that  ves.sel  of  Messrs.  Mason  and 
Slidell,  agents  and  emissariesof  the  confederate  government,  by  a  vessel 
of  war  of  the  United  States,  and  in  the  apprehension  of  probable  hostili- 
ties between  the  United  States  and  Great  Britian  on  account  of  such 
arrest  and  seizure. 

On  the  part  of  the  claimants  it  was  contended  that,  iriespective  of 
treaty  stipulations  between  the  United  States  and  Great  J3ritain,  the 
proelauiation  and  ordinan(!es  were  in  effect  an  embargo  on  saUi>etre- 
laden  vessels  bound  for  non-British  ports,  at  least  during  the  time  it 
would  take  to  unlade  the  saltpetre;  that  it  was  a  civil,  as  distinguished 
fi oni  ii  hostile,  embargo,  not  directed  against  vessels  of  the  United  States 
exclusively,  but  as  a  husbanding  of  resources  merely,  though  in  anticipa- 
tion of  probable  hostilities,  and  tliereby  having  some  features  of  a  hostile 
embargo;  that  even  in  the  case  of  a  hostile  embargo,  if  war  does  not 
ensue,  i'lnocent  sufferers  have  a  just  claim  for  indemnity,  recognized  by 
international  law  and  practice;  that  a  fortiori  there  is  always  a  Just 
claim  for  indemnity  by  sufferers  in  the  case  of  a  civil  embargo;  that  the 
fact  that  the  embargo  was  justified  by  the  municipal  law  of  Great  Britain 
did  not  relieve  that  government  from  liability  under  international  law; 
that  the  action  of  the  American  commander  in  the  arrest  of  the  Trent,  and 
the  seizure  and  removal  of  the  two  passengers  named,  were  notjustilied 
by  his  instructions,  and  were  subsequently  disavowed  by  his  government, 
and  therefore  no  international  wrong  was  ever  committed  by  the  United 
States;  and  that,  therefore,  such  action  atfbrded  no  justification  of 
measures  by  the  British  governmei't  in  anticipation  of  war,  even  if  the 
measures  in  question  wt  uld  have  been  justified  by  the  emergency,  if  the 
acts  of  the  oHicer  had  been  avowed  by  his  government;  that  if  the  royal 
].roclamation  and  the  ordinances  were  not  to  be  considered  as  constituting 
an  embargo,  but  only  a  matter  of  domestic  and  police  regulation,  they  cer- 
tiiinly  constituted  a  violation  of  the  rights  of  friendly  foreigners,  and 
involved  liability  for  comp«Misation  ;  and  that,  in  the  case  of  the  Daring, 
the  ordinance  of  tlue  27th  December  having  clearly  given  her  the  right 
to  sail  with  the  cargo  already  loaded,  this  permission,  with  the  subse 


agent's  report. 


or 
o  I 


extend  to 
•ado  of  the 
lio  first  in- 
minions  in 
f,  from  one 
ing  on  tlie 
linient,  but 
riitories  in 
3lood  Hope, 
in  of  Great 
liat  ro^ardB 
to  tlie  laws 

I  gated  by 
itisU  mail- 
lason  and 
by  a  vessel 
L)le  hostili- 
Qt  of  such 

spective  of 
tritain,  the 
saUpetre- 
the  time  it 
.tiiisnished 
itod  States 

II  anticipa- 
of  a  hi^stile 
ir  does  not 
jognized  by 
[vays  a. just 

);  that  the 
leat  Britain 
ional  law; 
Trent,  and 
lotjustitied 
verninent, 
Ithe  United 
iication   of 
iveu  if  the 
ncy,  if  the 
f  the  royal 
lonstituting 
in,  they  cer- 
pgiiers,  and 
;he  Daring, 
[r  the  right 
the  subse 


'a 


queiit  acts  done  and  expense  incurred  by  her  owners  on  the  faith  thereof, 
in  continuing  to  lade  their  cargo  on  top  of  tiie  saltpetre,  in  relian(;e  on 
the  ordinance,  constituted  a  contract,  and  entitled  the  vessel  to  the 
observance  of  that  contract  by  the  Indian  authorities. 

Under  the  treaty  between  Great  Britain  and  the   United  States,  the 
claimants  respectively  contended  that  the  right  of  the  vessels  in  cpies- 
tion  to  sail  with  the  saltpetre  on  board  was  gnaraniied  by  the  terms  of 
the  treaty.    That  "  exportation  "  of  saltpetre  "  from  the  said  territories  " 
was  not  "entirely  prohibited"  by  the  terms  of  the  ordinances,  for  such 
exportation  was  allowed  to  England.    Tliat  transportation  from  India  to 
England  was  an  "  exportation  from  the  said  territories,"  and  was  so 
re(;ogiii/.ed  by  the  terms  of  the  proclamation  itself,  which  recited,  "  it 
shall  not  be  lawful  for  any  person  to  ex^mrt  saltpetre  from  any  part  of 
Her  Majesty's  territories  in  India,  except  in  a  British  vessel  bound  cither 
to  the  port  of  London  or  to  the  port  of  Liverpool."    That  the  acts  in 
([nestion  were  plainly  not  "in  time  of  war  between  the  British  govern- 
iiuMit  and  any  state  or  jiower  whatever."     That  the  language  of  the 
treaty    ])roviding    "  that    in  all   that    regards    tiiis   article,  the    citi 
zens  of  the  United  States  shall  be  subject  in  all  respects  to  the  laws 
and  regulations  of  the  British  government  from  time  to  time  estab- 
lished," could  not  be  construed  so  as  to  authorize  the  local  authorities 
to  deny  rights  expressly  stipulated  for  ia  the  treaty,  and  formed  no 
bar  to  the  right  of  the  claimants  to  sail  with  the  saltpetre  on  board 
their  vessels,  the  same  having  been  lawfully  taken  on  board. 

The  claimants'  counsel  cited  the  Boedes  Lust,  5  Bob.,  24G ;  Beawes 
Mcr.  Law,  L'7() ;  U.S.Stat.  Jit  L.,  381,  reimbursing  suffererts  r'rom  the 
Bordeaux  embargo  ;  Dana's  Wheaton,  p.  4,  §  15  ;  p.  37.'i,  §  21)o ;  od  IMiill., 
42;  Iloneyman  arguendo^  in  Aubert  Vft.  Gray,  3  B.  and  S.,  Q.  B.,  170; 
letter  of  Lord  Clarendon  to  Mr.  Dallas,  of  May  15, 1850,  Br.  and  Am. 
Dip.  Cor.;  Gardn.  Inst,  of  Int.  Law,  540. 

Her  IMajesty's  counsel  maintained  that  both  under  international  law, 
irrespective  of  treaty  stiimlation,  and  under  the  treaty  stipulations 
between  the  Uniteii  States  and  Great  Britain,  the  proclamation  and 
ordinances  in  (luestion  were  lawful  and  valid,  and  involved  no  liability 
for  (!ompensation  to  parties  injured  by  their  provisions.  That  they  wore 
eeneral  regulations,  not  directed  against  the  ships  or  cargoes  of  these 
claiiiiants  in  particular,  nor  subjecting  the  ships  or  commerce  of  the 
United  States  to  any  discrimination  or  disadvantage  not  common  to 
all  other  foreign  nations.  That  even  British  ships  were  subjected  to 
the  same  disadvantage;  and  the  right  of  exporting  saltpetre  to  the 
mother  country  reserved  to  them  was  a  right  which  never  had  belonged 
to  the  United  States.  That  commercial  adventures  of  this  character 
were,  in  the  nature  of  things,  subject  to  any  modification  of  law  which 
migiit  affect  the  anticipated  profits,  and  perhaps  defeat  them  altogether. 
That  the  ordinances  did  not  constitute  an  embargo  in  any  just  sense, 
whether  hostile  or  civil.  That  they  wero  municipal  regulations  of  trade, 


38 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


' 


not  forbidden  by  any  principle  known  to  the  law  of  nations.  And  that, 
aside  from  the  treaty  between  the  United  States  and  Great  Britain, 
they  were  clearly  authorized  by  international  law.  That  a  Just  inter- 
pretation of  the  third  article  of  the  convention  of  1815  must  hold  it 
not  to  prohibit  the  British  government  from  regulating  the  exportation 
of  i)roducts  of  the  Indies,  from  time  to  time,  as  might  be  deemed  exi)e- 
dient,  or  in  its  discretion  from  temporarily  prohibiting  the  exportation 
of  some  or  all  of  such  products  to  any  foreign  nation  whatever.  And 
tliat  of  the  occasion  of  such  proliibition  and  its  extent,  every  nation 
must  of  necessity  be  for  itself  the  sole  judge. 

That  the  treaty  permitting  the  trade  between  the  Indian  ports  and 
tile  United  States  in  articles  the  exportation  of  which  "  shall  not  be 
entirely  prohibited,"  gave  no  right  to  those  citizens  to  export  saltpetre 
at  the  time  in  question,  the  exportation  of  that  article  being  by  the 
terms  of  the  ordinances  entirely'  prohibited.  That  the  word  "exi)orta- 
tion  "  referred  to  foreign  commerce,  and  not  to  the  transportation  from 
the  Indies  to  the  home  ports  of  Great  Britain.  That  the  reservation  of 
the  right  of  transportation  to  such  home  jjorts  was  in  no  respect  '>iejir 
dii'ial  to  the  commerce  of  the  United  States,  they  having  lu,  .i-rl.  iu 
l)arti('ii)ate  in  the  trade  between  Indian  ports  and  the  ports  o;  Gieat 
Britain.  That  the  treaty  itsi'lf  providing  for  this  trade  also  provide<l 
that  the  citizens  of  the  United  States  should  be  subject  in  all  resi)ects 
to  tlie  laws  and  regulations  of  the  British  government,  and  thus  ex- 
l)ressl.\  subjected  them  to  the  operation  of  ordinances  like  those  in  ques- 
tion i;uthoriz(Ml  by  the  statute  upon  which  they  were  based.  That  the 
ordinances  of  27th  December  and  .'3d  January  were  Just,  caused  by  an 
act  of  an  armed  vessel  of  the  United  States  in  violation  of  international 
law,  and  affording  a  re.isonable  apprehension  of  hostilities  to  ensue  be- 
tween Great  Britain  "ud  the  United  States.  That  in  such  case  all 
means  of  i)rotection  and  telfdefense,  not  in  themselves  at  variance  with 
the  ordinary  principles  of  Justice,  and  impartially  used,  were  permissible 
to  eveiy  government,  and  that  this  prerogative  having  been  exercised 
houa  Jide  for  the  safety  of  the  realm  on  a  particular  emergency  by  :v 
prohibition  ecjually  affecting  native  subjects  and  foreign  merchants,  the 
latter  have  no  ground  upon  princi[)les  of  international  right  or  justice 
to  recpiire  compensation  for  such  an  unavoidable  diminution  of  their 
('ommeniial  profits. 

Tlie  counnission  disallowed  all  the  claims,  Mr.  Commissioner  Frazer 
dissenting  and  reading  a  dissenting  opinion,  a  copy  of  which  will  be 
found  in  the  appendix,  U. 


•I 
I 


A  ■■4 


Tripjis  case. 

Josiah  Winslow  Tripp  vs.  Great  Britain,  No.  15. 

The  <!laimant  in  this  case  alleged,  in  substance,  by  hi?  inMnorial  that 
prior  to  August,  18G2,  he  was  lawfully  possessed  o    a  ceria  ■;  limestone 


AGENT  S    REPORT. 


39 


tViid  that, 
:;  Britain, 
list  inter- 
t  hold  it 
portaiion 
ned  expe- 
por.ation 
or.  And 
ry  nation 

ports  and 
II  not  be 
saltpetre 
ig  by  the 
'  exporta  ■ 
tion  from 
ivation  of 
ect   'leiir 

provide*] 

resi)ects 

thus  I'x- 

e  in  qnes- 

riiat  the 

m1  by  an 

national 

'iisiie  be- 

case  all 

mee  with 

■niissible 

xercised 

ney  by  a 

ants,  the 

!•  justice 

of  their 

r  Frazer 
will  be 


^•ial  that 
nestone 


(piarry  and  lime-kiln,  to<?ether  with  some  1,500  barrels  of  lime,  tools, 
furniture,  &e.,on  San  Juan  Island,  in  the  Territory  of  Washiuj^ton,  be- 
lon<,Mn-;'  to  the  United  States. 

That  in  his  absence  from  the  island  in  Au;?ust,  1802,  his  wife  was 
ejected  from  the  pienuses  by  one  Roberts,  a  British  subject,  who  took 
possession  of  the  real  estate  and  appropriated  the  personal  jiroperty. 
That  claimant commeiK^ed  a  suit  against  Itoberts  in  a  justice's  court  ot 
the  Territory  of  Washington  to  recover  the  possession  of  the  premises, 
and  obtaine<l  judgment  for  restitution  of  the  property,  whi(;li  was  fol- 
lowed by  a  warrant  of  restitution  for  its  enforcement. 

That  Koberts  thereupon  appealed  to  Captain  Bazalgett,  conunander 
of  the  British  forces  on  the  island.  That  Bazalgett  thereupon  applied 
to  INIajor  Bissell,  commanding  the  American  forces  on  the  island,  and 
that  Major  Bissell  thereupon  arrested  the  claimant  and  the  justice  »»f  the 
j)eace  who  had  rendered  the  judgment  against  Boberts,  put  them  in  the 
guardhouse,  and  shortly  after  expelled  the  claimant  from  the  island. 

That  in  April,  1S(J4,  the  claimant  returned  to  the  island,  and  liuding 
his  claim  vacant,  took  possession  of  the  same,  providing  anew  stock  of 
tools  and  supplies,  and  commenced  to  work  the  (piarry  ;  but  after  ten 
days  spent  in  it,  was  again  forcibly  removed  by  command  of  Captain 
Bazalgett,  put  in  the  guardhouse,  detained  two  weeks,  ami  th.-n  ban. 
ished  from  the  island  and  forbidden  ever  to  return. 

The  nuMuorial  alleged  the  value  of  the  (piarry  at  $50,000,  a'i<l  claimed 
damages  by  occasion  of  the  jucmises  $100,000. 

Evi(ienc(^  was  taken  on  the  part  of  the  claiiNant  teiuling  to  sustain 
his  allegations  as  to  his  possession  of  the  property  and  removal  there- 
from. 

At  the  time  of  the  acts  alleged  the  title  of  the  island  of  San  Juan 
was  in  dispute  between  the  United  States  and  (Jreat  Britain.  an<l  the 
island  was  occupied  bv  a  joii.t  military  iovce  of  the  two  governments 
under  an  .irrangement  made  between  then  for  such  joint  occupancy,  by 
which  the  citizens  and  subjects  of  each  government  were  made  amena- 
ble to  the  authorities  of  their  own  government  only. 

Bending  ihe  case  before  this   commission.  His  Majesty  the  Emperor 
'.'  (lermany,  to  whom  the  decision  of  the  (luestion  was  referred  by  the 
treaty  of  iSth  May,  1871,  decide*!  the  island  to  be  the  property  of  the 
United  States. 

The  proofs  tiled  on  the  part  of  the  d(,'fen(;e  showed  that  the  arrest  of 
Tripp  and  his  expulsion  from  the  island  were  by  order  of  the  com- 
mander of  the  United  States  forces  upon  the  island,  and  not  tlirough 
any  assuniptiou  of  authority  on  the  part  of  the  commander  of  the 
British  forces. 

The  claimant  liled  au  argument  admitting  that  the  arrest  and  order 
of  banishment  on  each  occasion  came  from  the  American  commander, 
but  claiming  that  it  was  on  the  complaint  of  the  British  commamler, 
who  represented  his  own  government  and  mad"  unfounded  charges 


40 


AMERICAN-BRITISH    CLAIMS   COMMISSION. 


agiiiiist  the  claiinaiit,  wliich  wore  the  cause  of  his  arrest  ami  banish- 
ment, and  that  by  reason  tliereof  tlie  British  government  was  liable  to 
his  reclamation  for  damages. 

Tlie   commission,  without  hearing  any  argument  for  the   defense, 
unanimously  disallowed  the  claim. 


"'^^ 


HuhbelVs  case. 

William  Wheeler  Hubbell  vs.  Great  Britain,  No.  17. 

The  memorial  of  the  claimant  alleged,  in  effect,  that  prior  to  the  1st 
of  July,  1844,  the  claimant  was  the  inventor  of  a  certain  imi)rovement 
in  breech-loading  firearms,  for  which  letters  patent  were  issued  to  him 
by  the  United  States,  dated  1st  July,  1844. 

Tiiat  in  the  year  1844  the  British  government,  through  Her  Majesty's 
consul  at  Philadelphia,  ordered  of  the  claimant  two  specimen  guns  made 
under  the  clrm ant's  invention  and  [latent,  which  were  thereupon  pro- 
cured to  be  m;  !  the  claimant,  and  furnished  through  the  consul  to 
Her  Majesty's  go         ment  in  1845,  and  paid  for  by  that  government. 

Tlie  memorial  further  alleged  th"t  "  it  was  understood  and  agreed 
that  the  invention  of  said  mechanical  principle  "  of  the  claimant  "  should 
be  paid  for  by  Her  Majesty's  government  whenever  it  should  be  deter- 
mined upon  for  adoption  in  Her  Majesty's  service."  That  after  the  re- 
ceipt of  the  s[)ecimen  guns,  in  1845,  it  was  determined  by  Her  Majesty's 
governnu^nt,  in  the  same  year,  that  it  was  not  expedient  to  adopt  them 
for  use,  but  that  subsequently,  on  the  14th  March,  1805,  Her  ^lajesty's 
government  made  "  a  full  determination  of  adoption  in  Her  Majesty's 
service  of  breech-loading  firearms"  known  as  the  fSnyder  Enfield  rifie, 
containing  and  embodying  the  mechanical  principle  covered  by  the 
claimant's  invention  and  patent;  and  that  after  such  official  " determi- 
mition  of  adoption,"  in  ]\';'rch,  1805,  Her  Majesty's  government  issued 
to  Her  Majesty's  army  and  navy  500,000  muskets  of  the  pattern  named 
and  covered  by  the  invention  and  patent  of  the  claimant. 

The  claimant  claimed  a  royalty  of  $1  each  upon  these  muskets, 
amounting  to  $500,000,  besides  interest. 

A  tlemnrrer  was  interjjosed  by  Her  IVIajesty's  counsel  to  the  memorial, 
on  the  ground  that  the  commission  had  no  jurisdiction  of  the  claim 
stated  in  the  memorial,  and  that  the  memorial  alleged  no  sufiicient 
ground  of  claim  against  Great  Britain,  in  that — 

1.  The  claim  was  based  upon  a  contract,  exi)ress  or  implied,  which 
was  m)t  i  claim  within  the  terms  or  intent  of  the  treaty,  not  being  a 
claim  "  aiising  out  of  acts  committed  against  the  persons  or  property  of 
citizens  of  the  United  States." 

2.  That  if  such  claim  on  contract  were  within  the  jurisdiction  given 
by  the  treaty,  the  claimant  could  have  no  standing  before  the  commis- 
sion as  an  international  tribunal  until  he  had  exhausted  the  remedies  in 


I 

4 


AGENT  S    REPORT. 


41 


1  banish- 
liable  to 

deieuse, 


3  tlie  1st 
Dvement 
cl  to  him 

yinjesty's 
lis  made 
poll  pro- 
;ousul  to 
meiit. 
I  aftroed 
"  should 
be  deter- 
n'  the  re- 
y[ajt\st.Y's 
)pt  them 
la.jest.v's 

ajesty's 
ehl  ritle, 

by  the 
deterini- 

t  issued 

1  luiined 

iiiskets, 

LMuorial, 
e  claim 
iHieieiit 

,  which 
>eiiig  a 
[lerty  of 

|i  j^iveii 
lommis- 
idies  iu 


all  the  muiiioipal  courts  of  Great  Britain,  and  until  Justice  had  been 
denied  him  by  such  tribunals  in  re  minhnc  duhiti. 

[i.  That  tlie  facts  allejj:ed  in  the  memorial  established  nosuch  contract 
as  claimed  by  the  claimant  for  the  payment  of  a  royalty  upon  guns 
subsequently  used  and  covered  by  his  invention. 

4.  That  no  act  of  Her  Majesty's  goveniment  was  alleged  as  hap- 
pening within  treaty  time,  except  the  "full  determination  of  adoption  " 
alleged  to  have  been  made  in  iNIarch,  1805,  and  that  this  was  not  an  act 
committed  against  the  property  of  the  claimant. 

r>.  That  the  claimant  did  not  appear  to  have  had  any  property  in  his 
alleged  invention  in  England,  and  that  his  property  in  the  invention  in  the 
United  States  had  expired  prior  to  March,  1805,  and  was  oiien  to  the 
whole  world. 

On  hearing  on  the  demurrer,  the  claim  was  unanimously  disallowed  by 
the  commission. 

V.-CLALMS   OF    SUBJECTS   OF   HER   BRITANNIC    MAJESTY   AGAINST    THE 

UNJTED  STATES. 

1, — Cla'um  for  property  aUecjed  to  have  been  taken  and  appropriated  to  the 

use  of  the  United  IStates. 

The  claims  embraced  under  this  head  were  very  numerous,  and  arose 
under  various  circumstances.  Most  of  them  may  be  grouped  under 
the  following  heads: 

a.  Those  ibr  property  in  the  nature  of  military  supi)lies,  taken  by 
authorized  ollicers  for  military  use,  and  vouchers  given  for  tlie  same. 

These  claims  arose  sometimes  with'-  the  loyal  States,  sometimes 
within  the  Federal  lines,  in  territory  reclaimed  from  the  enemy  within 
the  insurrectionary  States,  and  sometimes  within  the  enemy's  lines. 
Among  them  may  be  named  the  case  of  Thomas  Ward,  No.  1,  \vhi(tli 
was  for  cotton  taken  from  the  claimant  at  Wilmington,  N.  ('.,  shortly 
after  the  capture  of  that  city  by  the  Federal  forces,  and  a[)i)i'oi)riated 
fertile  use  of  the  United  States  hospital. 

On  the  part  of  the  United  States  it  was  contended  that  the  claimant, 
being  a  resident  of  North  Caroliiia,  was,  by  domicile,  an  enemy  (tf  the 
United  States.  He  was  found  in  a  town  ca|)tured  by  them,  and  his 
property  was  liable  to  levies  and  contributums  for  their  benelit. 

The  voucher  given  was  in  the  following  words  : 

OlTICE   rUOVOST-MAKSlIAL  Gl'.NKlt.VL, 

WUmbiijtoH,  X.  ('.,  Mnvrh  I?,  ISti'i. 

Received  of  Tiiouitis  Ward,  two  bales  of  cotton. 

P.  C.  HAYES, 
Lieut.  Col, and  I'rovont-Maixhul  (ivtuial,  l'.S..i., 

and  was  accompanied  by  a  certificate  of  an  assistant  surgeon  that  the 
cotton  was  used  for  beds  in  the  hospital. 


42 


AAfl'.RICAN-UUITISlI    CLAIMS    COMMISSION. 


Tlio  awiuil  of  the  coinmissioii,  in  wliicU  all  the  members  joined,  was 
as  follows: 

Witliont  <'X)ir(?ssing  any  opinion  on  tlie  offeot  to  bo  giv(«n  to  the  ovidonco  of  Tlionias 
Wiiid  and  Sarah  Ward,  tho  connnissiontTH  aro  of  tho  opinion  that  the  rcciipts  and 
vonehrrs^^ivrn  by  acknowh'd^jcd  onic'crs  of  tho  Army  at  the  time,  show  that  th«'  cotton 
wa.s  takt^n  from  tho  chtiniiint  for  tlu!  nsf  of  the  United  States.  This  we  think  snfli- 
cicnt,  in  the  absence  of  iiU  conntervailin^  proof,  to  whow  the  takinj;  by  the  United 
States.  Xotliin;i;  aitjiears  to  indicates  that  it  was  taken  as  enemy's  property,  and  the 
qnestionof  tlie  ri}j;htsoto  takc^  is,  therefore,  not  involved.  It  wiis  taken  nine  ilaysafter 
tho  cajitnro  of  Wihiiinjjton,  N.  C,  by  tlie  United  States,  and  the  jiossession  of  the 
place  ever  after  continned  in  the  United  States.  We  are  not,  npon  the  facts  before  ns, 
prepared  to  hold  that,  at  the  time  of  the  takinj;'  of  the  cotton,  the  place  was  enemy's 
territory.  We  ai^nse,  therefore,  that  the  claimant  is  entitled  to  comi>ensati(>n  for  the 
jiroperty,  the  am-jnnt  beinj?  the  averaj;  •  valne  of  cotton  nsnally  prodnced  in  that 
uei<;hiiorhood,  with  inti^rest  at  six  per  cent,  per  annum  until  .January  :U,  1H7;?. 

We  therefore  award  that  the  sum  of  .'?<)"20.44  be  paid  by  tho  (iovernment  of  the 
I'nited  States  to  the  jjovcrnment  of  Her  Britaiuiic  Majesty  in  respect  of  the  claim  of 
Thomas  Ward. 

Ill  the  case  of  John  AVilkinson,  No.  liS,  tho  elaiiii  was  for  beef  t;  ken 
IVoiii  the  claimant  on  ]\Iataj.;'or(la  Island,  Texiis,  by  a  coiiiiiiissar.v  of  the 
United  JStates  in  1803,  and  for  which  vouchers  in  the  usual  form  were 
uiveii.  The  claimant  was  domic  led  and  his  jiroperty  situated  within 
the  insuircctioiiaiy  State  of  Texas,  and  apjiarently  not  within  the  actual 
military  lines  of  the   United  States   at  the  time  of  the  takinjj;.     The 


vouchers  were  all   siju'iied   by 


irll 


authorized   ofUcer,  and  recited. 


1 


liavi'  taken  for  military  purposes  from  John  Wilkinson,"  the  pro]ierty 
described,  and  that  the  same  was  ne(!essary  for  the  public  service,  and 
would  be  accounted  for  in  the  otlicer's  monthly  returns. 

On  tlie  part  of  the  United  States  it  was  claimed  that  the  takings  was 
a  capture  under  t'.e  right  of  war,  and  that  no  liability  tor  payment  arose 
ajiainst  the  United  States. 

An  award  was  made  in  favor  of  the  claimant,  in  which  all  the  coiii- 
missioners  Joined. 

The  same  principle  was  applied  in  all  other  cases  of  like  character. 

b.  Claims  for  property  taken  under  the  command  of  authorized  olli- 
cers  of  the  United  States  for  military  use,  whether  in  the  loyal  S  ^tes 
or  within  those  portions  of  the  insurrectionary  States  permanently  oc- 
cupied by  the  Federal  forces,  or  within  those  portions  of  the  msiirrec. 
tionary  States  not  so  reclaimed  by  the  United  States,  and  for  which 
property  no  voucher  was  given. 

The  claim  of  Jonat!  m  Braithwaite,  No.  31,  was  for  a  horse  taken  for 
cavalry  use  in  Kentncky,  a  loyal  State,  in  ISIJI. 

On  the  part  of  the  United  States  it  was  contended  that  the  claimant? 
being  domiciled  in  Kentncky,  had  precisely  the  same  remedy  for  prop, 
erty  taken  lor  »ul  1  •  Uf^o,  as  citizens  of  the  United  States  residing  within 
the  loyal  States ;  that  the  laws  of  the  United  States  attorded  him  the 


i 


agent's    KEI'ORT. 


4.) 


ikmI,  was 


(if  Tlioiiias 
(•(•ipts  mul 
I  lie  cotton 
liiiik  Kiifti- 
tlii'  Kiiited 
ty.  1111(1  tilt) 
'  (l.iys  after 
»ion  of  the 
s  hi'foit*  us, 
lis  eiunny's 
ion  for  the 
I'd  ill  that 
H7:5. 

n-nt  of  th« 
lie  i:liiiiii  of 

?i'f  t;  ken 
r.v  of  the 
nin  were 
(1  within 
;lie  a(!tiuil 
iig.  The 
ite.l,  "1 
j)i'()l)erty 
vice,  and 


king  was 
ent  arose 


the  coin- 
racter. 

ized   ofli- 

S  ^tes 

'Utl.V    oc- 

iisnrrec. 

ir   which 


aken  for 

laimantj 
Cor  prop, 
g  within 
him  the 


proper  means  of  secnring  compensation  before  the  inoper  hnre;in  of  the 

^Var  Department,  and  that  the  case  was  not  one  for  international  re 

chimation. 
The  commission  gave  an  award  in  favor  of  the  claimant,  in  which  ill] 

the  commissioners  joined. 

In  the  case  of  Sainnel  lirook.  No.  00,  the  claim  was  for  certain  tar- 
panlins  taken  by  an  anthori/AMl  ofticer  for  the  use  of  the  United  States, 
at  Memphis,  Tenn.,  in  .Iiine,  18(JL*,  shortly  alter  the  capture  of  that  city 
by  the  Federal  forces. 

An  award  was  nmde  in  fsivor  of  the  claimant.  Mr.  Commissioner  Kra- 
zer  dissenting  ui)on  the  (piestion  of  the  sullicienfjy  of  i»roofs,  but  the 
commissioners  all  agreeing  as  to  the  principle  involved. 

It  nniy  be  stated  generally  that  the  conunission  were  unanimous  in  the 
allowance  of  claims  for  projieity  coming  under  this  head  when  taken 
wirhin  the  loyal  States  or  within  those  portions  of  the  insui  rectionary 
States  permanently  occupied  by  the  Federal  forces,  except  when  some- 
thing in  the  nature  of  the  property  or  in  the  conduct  of  the  claimant 
took  him  out  of  the  condition  of  neutrality.  Tims,  for  instance,  in  the 
case  of  Itobert  Davidson,  No.  6(5,  the  claim  was  for  gun-carjiages  aiid 
other  artilk'ry  apparatus,  manufactured  by  the  (;laimant  lor  tiic  use  of 
the  confederate  government,  and  remaining  in  his  possession  at  the  sur- 
render of  New  Orleans,  together  with  material  for  use  in  the  same  man- 
ufacture, which  was  taken  and  ajjpropriated  by  the  Federal  foi-ces,  under 
the  orders  of  General  Banks,  s;vne  months  after  the  captni'e  of  New 
Orleans.    The  claim  was  unanimously  disallowed. 

Where,  however,  the  taking  of  the  property  by  the  Federal  for(!es 
and  the  domicile  of  the  claimant  were  within  the  enemy's  lines,  or  in 
those  portions  of  the  enemy's  country  not  ret^lainu'd  from  the  enemy, 
the  majority  of  the  commission,  on  satisfactory  evidence  tliat  th<'  piop- 
erty  was  taken  by  authority,  or  actually  appiopriated  to  military  use, 
made  awards  in  Javor  of  the  claimants,  ]\ir.  Commissioner  Frazer  dis- 
senting, on  the  ground  that  one  domiciled  in  the  country  of  the  enemy 
was  himself  an  enemy  in  law,  whether  an  actual  enemy  or  not;  and  by 
well-settled  principles  of  public  law  his  sovereign  had  no  right  in  such 
cases  to  intervene  in  his  behalf  against  the  ordinary  treatment  of  him 
as  an  enemy.  In  the  principle  thus  held  in-  Mr.  Commissioner  Frazer, 
I  am  atlvised  that  the  presiding  commissioner  agreed  ;  but  in  view  of 
the  fact  that  the  United  States  had,  by  the  establishment  of  the  South- 
ern claims  commission,  made  provision  for  the  compensation  ol  its  own 
citizens  domiciled  within  the  enemy's  country  "  who  rennuned  loyal  ad- 
herents to  the  cause  and  tiie  Government  of  the  United  States  during 
the  war,"  for  property  taken  in  like  manner,  (10  Stat,  at  L.,  r)L*4,  §  L*,1 
he  was  of  opinion  that  neutral  aliens  in  like  situation  should  be  entitled 
to  the  same  degree  of  compensation,  and,  if  British  subjects,  to  a  stand- 
ing before  the  commission  for  that  end. 


II' 


44 


AMKRICAN-HRITISII    CLAIMS    COMMISSION. 


Upon  this  question  Mr.  Commissioner  Frazor  licld  that  any  provision 
mad*^  lor  the  paym(Mit  of  such  claims  to  citiziMis  was  not  in  (liscliarj«e  of 
an  ohiif^ation  imposed  by  tlie  public  law,  but  was  a  matter  of  lavor,  and 
could  carry  with  it  no  oblij^ation  on  the  part  of  the  (lovernment  of  the 
United  States  to  extend  like  compensath)n  to  others  not  embraced  within 
the  class  which  it  had  selected. 

In  the  case,  however,  of  John  Kater,  No.  10,  claimant  was  allowed  for 
two  horses  taken  by  Sheriihm's  army  on  its  raid  through  the  valley  of 
Virginia  in  August,  1804,  all  the  commissioners  joining  in  this  award, 
General  Sheridan's  order  of  August  16,1804,  directing  the  seizure  of  mules, 
horses,  and  cattle  for  the  use  of  the  Army,  having  in  eftect  promised  com- 
pensation for  such  property  to  loyal  citizens. 

In  the  case  of  Henry  Henderson,  No.  41,  the  claim  was  for  112  bales 
of  cotton  seized  by  the  United  States  military  forces  under  orders  of 
General  BaidvS,  on  i)lantations  in  the  State  of  Louisiana,  outside  of  the 
Federal  lines,  carried  to  I'ort  Hudson,  and  there  used  in  the  breastworks 
of  the  besieging  army  of  General  Baid;s  for  the  reduction  of  that  post. 

On  the  part  of  the  United  States  it  was  claimed  that  this  was  a  tak- 
ing of  enemy's  property  within  the  enemy's  country  for  strictly  military 
use,  justilied  by  the  laws  of  war,  and  for  which  the  United  States  were 
not  liable  to  make  compensation,  the  claimant  being  permanently  domi- 
ciled in  the  enemy's  country,  and  subject  to  the  same  treatment  as  other 
enemies.  The  claim  was  allowed  by  the  m:\jority  of  the  commission,  Mr. 
Commissioner  Frazer  dissenting  and  placing  on  the  records  of  the  cou)- 
mission  a  dissenting  opinion,  a  copy  of  which  will  be  found  in  the  appen- 
dix, F. 

c.  Claims  for  property  alleged  to  have  been  taken  and  approi)riated 
by  the  United  States  forces  within  the  enemy's  country,  not  appearing 
to  have  been  taken  under  any  regular  requisition  or  order  for  military 
use,  or  by  command  of  any  authorized  officer. 

These  claims  were  numerous  and  of  great  variety  in  regard  to  the  cir- 
cumstances of  the  alleged  taking.  It  is  somewhat  ditlicult  to  draw  the 
precise  line  of  distin(!tion  by  which  the  majority  of  the  commission  were 
guided  in  their  decisions.  It  may,  perhaps,  be  said  geiuMally  that  the 
commission  (Mr.  Commissioner  Frazer  dissenting)  ma<le  awards  in  favor 
of  the  claimant  whenever  it  appeared  by  satisfactory  evidence  that  the 
property  so  taken  was  a  legitimate  subject  of  military  use  and  was 
actually  applied  to  military  uses,  even  though  such  application  was  not 
made  through  the  regular  and  ordinary  channels.  On  the  other  hatui, 
where  the  property  was  in  its  nature  not  a  proper  subject  of  military 
use,  or,  being  such,  was  not  applied  to  military  use,  or  where  the  taking 
appeared  to  be  mere  acts  of  unauthorized  pillage  or  marauding,  the 
claims  were  disallowed. 


"•>> 


s 


AGENTS    KEI'OKT. 


45 


)rovision 

llliUjiO  of 
ivor,  jiud 
lit  of  the 
!(l  within 


owed  for 
valley  of 
is  award, 
of  nmles, 
sed  com- 


L12  bales 
)rder8  of 
le  of  the 
iistworks 
liat  post, 
as  a  tak- 

iiiilitary 
ites  were 
tly  doini- 

as  other 

jsioii,  Mr. 

le  coiu- 

appeii- 

oi)riated 
)ponriiig 
military 


Tn  the  case  of  Thomas  Stirling,  No.  12,  were  inchuhMl  as  well  claims 
for  property  destroyed  by  the  IJiiiteil  States  Army  in  its  inardu's  and 
encaminnents  in  the  State  of  Virjj;inia,  as  for  horses,  carriajjfes,  eattle, 
hoj^s,  tlonr,  corn,  and  bacon  alleged  to  have  been  t.iken  and  (iarried  otf 
by  the  soldiers.  The  proofs  showed  nothinj-;  beyond  the  <lisappearance 
of  the  property  in  the  presence  of  the  United  Statcss  Arnjy.  The  decision 
of  the  commission,  in  which  all  the  commissioners  joined,  was  made  in 
the  following  words : 

The  .-vets  (loiio  iipDii  which  this  duini  is  basoil  hoimii  to  have  bona  tlio  onVniary  rc- 
sultH  iiici<li>iit  to  tho  luan-h  of  an  iiiviMling  iirmv  in  ii  hostih*  territory,  witli  possibly 
some,  niiiintliorized  acts  of  destruction  and  i)ilh><,'o  by  the  soldiery,  with  no  jjroof  of 
approiniation  by  the  United  States.  Under  such  eirennistanees  llievi!  is  no  crninnd 
for  a  valid  claim  a<;ainst  the  United  States.    The  claim  is,  therefore,  disalloweil. 

In  the  case  of  the  Misses  Hayes,  No.  100,  milliners,  at  Jackson,  Miss., 
a  claim  was  made  for  a  stock  of  millinery  <?oods  and  like  i>roperty, 
allejicd  to  have  been  taken  by  soldiers  of  the  United  States  Army  on 
the  first  ca|>ture  of  Jackson,  in  May,  1803.  The  acts  complained  of 
appeared,  if  committed  by  United  States  soldiers,  to  have  been  acts  of 
pillatfe  merely,  and  the  claim  was  nuanimously  disallowed. 

In  the  cases  of  Michael  Grace,  No.  132,  Elizabeth  Bostock,  No.  133, 
Thomas  McMahon,  No.  130,  and  others,  at  Savannah,  being  claims  for 
property  alleged  to  have  been  taken  and  appropriated  by  United  States 
soldiers,  the  same  appeared  to  have  been  by  acts  of  nnauthori;ced  i)illage, 
and  were  rejected. 

In  the  cases  of  Bridget  Lavell,  No.  130,  Ann  O'llara,  No.  13r>,  Will- 
iam II.  Bennett,  No.  137,  and  William  Cleary,  No.  220,  at  Savannali, 
awards  were  made,  Mr.  Commissioner  Fra/.er  dissenting,  for  jsroperty 
taken  by  the  United  States  forces,  thongh  withont  proof  of  the  inter- 
vention of  an  anthorized  otticer,  the  i)roperty  being  in  the  nature  of 
commissary's  and  qnarternmster's  supplies,  applicable  to  the  proper  use 
of  the  Army,  and  actually,  though  perhaps  irregularly,  appropriated  to 
Army  use. 

In  the  case  of  David  Jacobs,  No.  230,  large  claims  were  made  for 
watches,  jewelry,  silks,  and  other  valuable  goods,  liquors  and  tobacco^ 
alleged  to  have  been  taken  by  General  Sherman's  army  at  Columbia,  on 
the  cnpture  of  that  city,  as  well  as  for  the  destruction  of  other  property 
by  the  burning  of  that  city. 

An  award  was  made,  Mr.  Commissioner  Frazer  dissenting,  for  the 
tobacco  taken  from  this  claimant,  on  proof  that  it  was  carried  off  in 
Army  wagons,  tobacco  being  allowed  as  an  Army  ration.  All  the  other 
claims  for  property  taken  from  this  claimant  were  disallowed. 

In  the  case  of  Watkins  and  Donnelly,  administrators,  No.  320,  an 
award  wa.s  made  against  the  United  States,  in  which  all  the  eomuiis- 


40 


AMERlCAN-HRITISIl    CLAIMS    COMMISSION. 


;!  is 


''i 


sioiKM's  JoiiUMl,  for  proporty  pillii^^cd  by  rnitcil  Stiitos  soldiers  in  tlio 
iii^^lit  from  ii  ('oiintry  sUnv  in  Missouri,  a  State  not  in  insnri'ccjtion,  upon 
pro  if  sliouin;!,'  f^reat  ni';;Uict  of  «lis(!i|)Iini^  on  tlic  part  of  Colonel  .lenni- 
sjn,  the  eoininandin^'  oHicer,  and  liis  ne<ii«'(!t  and  refusal  to  take  any 
ste|>s  for  the  surrender  of  the  stolen  property  or  the  punishment  of  the 
olli'iiders  when  notifUMl  of  the  facts,  and  that  a  part,  at  least,  <».  the 
stoU'n  [>roperty  was  then  in  possession  of  his  troops. 

(1.  Claims  for  the  use  and  oeciupation  of  lands  and  buildinj^s  within 
the  loyal  portions  of  the  United  States,  or  within  those  portions  of  the 
insurrectionary  States  pernninently  reclaimed  by  the  United  States,  antl 
for  damaj>es  resnltinj;-  from  such  use  and  oc('n[Kitit)n. 

In  the  case  of  .Tames  Crutcdiett,  No,  4,  claim  was  made  for  the  use  and 
occupation  of  a  factory  building  of  the  claimant  in  the  (Mty  of  Washinj; 
ton,  which  was  from  .Inly,  1S(»1,  to  the  end  of  the  war,  occupied  by  the 
United  States  as  barracks,  (juarters,  and  oflices  for  troops  and  ollicers, 
and  also  for  larf^e  resnltinjn'  dainaj^es  to  the  (.'laimant's  business  by  this 
oc(ai[>ation  of  the  buildings  and  removal  of  the  machinery,  &c. 

The  proofs  showed  that  the  premises  were  taken  possession  of  by  the 
U'nited  States  under  the  right  of  en»inent  donnun  for  military  use,  and 
that  partial  piiyments  of  the  rent  had  been  made  to  the  claimant,  who 
ha<l  been  tor  many  years  domiciled  in  the  city  of  Washington. 

The  (!ounsel  of  the  United  States  tiled  a  demurrer  to  the  memorial, 
specifying,  among  other  ground>',  that  the  claimant  and  his  property, 
thus  domiciled  and  situated,  were  ;-iubject  to  the  exercise  of  the  right  of 
eminent  domain  over  the  property  by  the  United  States;  and  that  for 
the  exercise  of  such  right  and  the  occupation  of  the  i)roperty,  full  com- 
pensation could  be  had  by  the  claimant  under  the  munici[)al  laws  au«l 
authority  of  the  United  States  ;  and  that  such  acts  were,  therefore,  iu)t 
the  subject  of  international  reclamation. 

On  the  argument  of  the  demurrer  the  counsel  for  the  United  States 
contended  that  the  claimant,  domiciled  within  the  United  States,  was 
subject  to  all  the  burdens  and  liabilities  of  other  inhabitants  of  those 
States,  ami  could  claim  no  better  position  or  superior  rights  in 
regard  to  the  United  States  than  a  native-born  or  naturalized  citizen  of 
those  States.  That  for  the  occupation  of  his  premises  he  was  entitled, 
uiuler  the  Constitution  of  the  United  States,  to  comj)ensation,  and  that 
the  Court  of  Claims  had  full  jurisdiction  of  the  case,  and  could  have 
afforded  him  full  redress. 

The  counsel  cited  the  letter  of  Earl  Granville  to  Mr.  Stewart,  (No.  23 
of  parlianientai'y  papers,  No.  4,  on  the  Franco  German  war,  1871,  British 
state  papers;)  Professor  Bernard's  "  Neutrality  of  Great  Britain,"  &c., 
pp.  440,454;  also,  the  note  of  Mr.  Abbott  (Lord  Tenterdeu)  relating  to 
this  identical  claim  of  Mr.  Crutchett,  id.,  450 ;  also,  the  case  of  William 


^rs  in  tlio 
ion,  npoM 
iiel  J(>nni- 
3  take  any 
cnt  of  Mh' 

ist,  (..    tll(^ 

i«s  within 
itns  of  tlic 
tates,  and 

H'  nso  and 
Wasliin<; 
t'd  by  the 
id  ()tli(;ois, 
!88  by  this 

'» 

of  by  the 
y  nsc,  and 
nant,  who 

nioniorial, 
property, 
le  ri};ht  ol 
d  that  for 
,  lull  coni- 
hiws  and 
elbre,  not 

ed  States 
.ales,  was 
s  of  those 
eights  in 
citizen  of 
5  entitled, 
and  that 
mid  have 

t,  (No.  23 
1,  British 
*in,"  &c., 
slating  to 
f  William 


AGKNTS    KKl'OUr. 


4' 


Cook  before  the  coininissioner.s  under  the  convention  of  isr).'i.  between 
the  I'^nited  States  and  (Jreat  IJritain,  (United  Statt's  Senate  dociunents, 
tirst  and  second  sessions  Tiiirty-foiirth  (Jongress,  vol.  1"»,  Xo.  KKi,  pi>. 
1()0,  !(».'{;)  also,  the  case  of  the  rniteil  States  rs.  O'Keell'e,  in  the  Suprenu' 
('ourt  of  ihe  United  Stii.t«'s,  (11  Wall.,  178;)  and  th(^  cases  of  Waters, 
(t  (!.  (Ms.  It'.p.,  ;{,n;)  li:issi'll,  (.')  id.,  rj!>;)  Filor  rv.  United  States,  (!) 
Wall.,  1.1 ;)  also,  (Jani|>l)ell's  case,  (.">  C.  Cls.  Uep.,  LML';)  anil  I'rovine's 
(!ase,  (id.,  ■i'u).) 

On  the  p:irt  of  the  claimant  it  was  cDntended  that,  while  the  claimant 
was  entitled  to  compensation  for  the  use  of  his  jjroperty  under  the  (Con- 
stitution of  the  United  States,  the  Jurisdiction  of  the  (Jouit  of  Ulaims  in 
the  (tase  was  taken  away  by  the  act  of  Congress  of  .Fulyt,  18»U,  (l.'j  Stat 
at  L.,;W1,)  citing  Filor  i-s.  ITnited  States,  (1)  Wall.,  45.) 

The  demurrer  was  overruled,  and  an  award  was  subsccpiently  made  in 
favor  of  the  claimant  for  the  value  of  the  use  and  occui>ation,  in  which 
all  the  commissioners  joined. 

The  case  of  William  II.  Lane,  No.  0,  was  a  claim  for  occupation  by 
the  United  States  of  a  building  of  the  claimant  in  Mem[)his,  in  ISO! ; 
that  of  Eleanor  W.  Tuiner,  No.  M,  was  a  claim  for  like  occupation  of 
a  house  in  New  (Jrleans  by  the  United  States  military  authorities;  aird 
that  of  ICIi/a  1>.  Nelson,  No.  140,  was  a  claim  lor  like  occupation  of  a 
building  at  Helena.,  Ark;  all  said  occui)ations  being  while  the  res^ject. 
ive  i)laces  were  permanently  held  by  the  United  States.  Awards  were 
made  in  favor  of  the  claimant  in  each  case,  Mr.  Commissioner  Urazer 
dissenting  in  Nos.  34  and  140. 

e.  Claims  for  pro))erty  taken  under  the  abandoned  and  captured  prop- 
erty act  of  March  12,  1803,  (12  Stat,  at  L.,  820.) 

This  act  provided  in  elfect  for  the  turning  over  of  proi)erty  captured 
or  seized  as  abandoned  by  the  military  and  naval  authorities  of  the 
United  States  to  agent «,  to  be  a[)i)ointed  by  the  Secretary  of  the  Treasury, 
for  the  sale  of  such  property,  and  the  paynunit  of  the  proceeds  into  the 
Treasury;  and  provided  that  the  owner  of  such  property  might,  within 
two  yeais  after  the  suppression  of  the  '.vbellion,  bring  suit  for  the  pro. 
cee<ls  in  the  Court  of  Claims,  and,  on  proof  of  his  ownership  and  right 
to  the  proceeds,  and  that  he  had  never  given  aid  or  comfort  to  the  rebel- 
lion, should  be  entitled  to  recover  the  net  procei;t!s  The  act  was 
undoubtedly  intended  to  apply  i)articularly  to  cotton  and  the  other 
staple  products  of  the  Southern  States.  To  such  products  only  it  was 
in  practice  applied. 

Many  claims  were  brought  before  the  commission  tor  property, 
principally  cotton,  taken  under  this  act.  Most  of  the  claims  thus 
brought  had  beeu  prosecuted  in  the  Court  of  Claims,  some  of  which 
were  still  pending  in  that  court ;  some  were  pending  on  appeal  in  the 


1 


'1 


'V  I 


4S 


>V: 


AHKKICAN-HUITISII    CLAIMS   COMMISSION. 


Hnpromo  (!ourt ;  in  some  tlio  Court  of  CliiiiiiH  luul  fjivcn  jiul;4iii«'nt  in 
favor  of  tlie  (ilainiants  for  the  net  proceeds,  the  elainiants  now  elainiing 
liere  tliat  .su<'li  amount  was  less  than  tlie  full  value  of  their  j>ropert,v,  to 
which  they  (tlainu'd  themselves  entitled;  an<l  in  some  Jud{;'ment  had 
;;(ine  a<;ainst  the  claiu)ant  iu  the  Court  of  Claims,  and  no  appeal  had 
been  taken.  In  some  cases  the  claimants  were  domiciled  within  the  in- 
surre(;tioiuiry  States,  and  in  others  within  the  Kritish  dominions.  In  a 
few  eases  no  suit  had  been  prosecuted  in  the  Court  of  Claims.  The 
a^ent  of  the  United  States  interposed  demurrers  iu  several  cases,  includ- 
inj;  all  the  different  classes  above  named. 

On  the  arjjument  it  was  conteiuled  tor  the  United  States  that  the 
ri{«ht  of  capture,  by  a  belligerent,  of  private  enemy's  jn'operty  on  land 
was  permitted  by  the  laws  of  war;  that  that  ri}»ht  was  specially  appli- 
cable to  the  case  of  a  }freat  staple  like  cotton,  upon  wiiich  the  enemy 
principally  depended  for  his  military  and  naval  supplies,  and  for  his 
credit  and  means  to  carry  on  the  war;  that  by  the  abandoned  and 
captured  property  act  of  12th  March,  18G;i,  the  United  States  had  in  no 
respect  abamloned  or  waived  this  right,  bnt  that  that  act  constituted 
merely  an  act  of  grac  ^  in  favor  of  individuals  who  might  show  them- 
selves personally  free  from  complicity  with  the  rebellion  ;  that  under 
that  act  neutral  aliens  stood  upon  the  same  footing  with  loyal  citizens, 
and  were  entitled  to  the  same  rights  given  to  such  citizens  by  the  act, 
and  subject  only  to  the  same  disabilities ;  that  the  owner  of  p  Merty 
thus  captured  within  the  enemy's  country  had  no  right  of  rec!  ^iou 
against  the  United  States,  except  that  given  by  the  act,  and  t..  lUat 
renuMly  must  be  pursued  in  the  form  given,  and  before  the  tribunal 
specified  in  the  act. 

ile  cited  Vattel,  book  3,c.  9,  §§  101,  IG-'J,  104;  Twiss,  vol.  2,  (war,)  pp. 
122  to  121;  Kutherforth,  book  2,  c.  9,  §  10;  Mrs.  Alexander's  Cotton,  2 
Wall.,  404;  the  United  States  f.v.  Padelford,  9  id.,  o.'il;  the.United  States 
r.v.  O'Keeffe,  11  id.,  178;  1  Kent's  Com.,  pp.  92,  93. 

On  the  [»art  of  Her  Majesty's  counsel  representing  the  claimants,  it 
was  conteiuled — 

1.  Tliiit  tilt'  personal  property  of  tlio  inhabitants  of  tbo  insunectionary  States 
w  hi'ther  eitizciis  or  aliens,  neither  by  its  locality  nor  by  its  character  as  product  of  the 
soil,  was  the  lawful  subject  of  capture  as  prize  and  booty  of  war. 

2.  That  in  this  respect  the  article  of  cotton  is  not  distinguishable  from  other  property. 

3.  That  the  Government  of  the  United  States  has  never  claimed  or  asserted  title  to 
such  personal  i)roperty  as  prize  and  booty  of  war,  but,  on  the  contrary,  by  legislation 
has  iiiii)liedly  <lisclaimed  such  title. 

4.  Tliat  the  property  for  the  destruction  or  appropriation  of  which  these  claimants 
denuuid  indemnity  never  ceased  to  le  their  property,  but  continued  such,  notwith- 
staiidiiif^  the  fact  of  war  and  the  fact  of  seizure  or  appropriation  by  the  military 
authorities  of  the  United  States. 

.^>.  That  t  heir  rigilit  to  bo  indemnified  for  such  seizure  or  appropriation  doesnot  depend 
in  any  dej-ree  upon  any  municipal  legislation  of  the  United  States  either  recognizing 
the  riglit  or  providing  a  remedy  complete  or  partial,  bnt  rests  upon  principles  of  the 
public  law,  recognized  as  well  by  the  United  States  as  by  all  other  civilized  nations. 


■--% 


acmcnt's  i{i:roi{T. 


49 


;j;nuMit  ill 
cliiiinin^ 
)pi'rt.v,  to 
iiiciit  had 
>po!il  luul 
in  tlio  in- 
ns. In  a 
niH.  The 
s,  incliul- 

that  the 
y  on  hind 
lly  appli- 
le  ononiy 
d  tor  his 
)nod  and 
had  in  no 
nstitnted 
ow  thenj- 
lat  under 

citizens, 

•  the  act, 

J)    norty 

Mou 

t..      in  at 

tribunal 

war,)  pp. 

otton,  2 

Hi  States 

nants,  it 

ary  States 
act  of  the 

'  property. 
3(1  title  to 
egislatioQ 

claiiDaiitH 
notwith- 
inilitary 

ot  depend 

liogiiiziiii; 
les  of  the 

llltiODS. 


(!.  Tliiit,  tliricforo.  till'  act  of  Miircli  I'J,  l-^il:!.  iM'itlwr  ;,'iivr  any  liu'lit  \vl:icli  tin-  i>aiti.'s 
hail  iiiil    iM'r.iri-  li.v  si-tlii'il   piiiicipli's  of  piihlii'   law,  nor  piir|»i)iti'(l  to  ^ivi'  ii  ii'iiii'ily 

( ciisiiiati'  Willi  that  ii«;lit  midcr  tin-  i.nl>li<'  law.     Tliat  ait  \n  as  piiri'i.v  a  numiclpal  ■ 

iiitaHiin',  ilirlaliil  hy  coiisidcratimis  of  doini'stir  iioijcy, 

7.  That,  liii'ri't'nif,  it  is  whtilly  iniiiiati'i  ial  li>  tiii'  drtiTiniiialion  of  tlirsr  iiitcniatiniial 
claiiiis  whi'tliir  IIuim-  pailifs  had  or  had  iml  a  ri'iinily  under  that  Niatiili'.  or  did  or 

did  nut  avail  thrnisi'lvcs  of  siifh  rcnn'dy.     Tlii-  Conrl  of  Claims  in  h'^rn-  cxi'ii'ised 

till'  fiiiiciioiis  oi'  fiiHiilt'd  till'  iliilifs  nf  tills  triliiinal,  wliosc  i.lili;;atiitiis  iiiidi  r  llir  liraty 
and  till'  pnldic  law  ninst  In-  disrhargi'd  according;  to  its  nwn  Jnilyini'iit  Jiiiil  roiis.'ii'iiro 
in  i-asi's  ci.niiii;,'  witliin  the  tn-aty.  whrtlii'r  thr  Conrt  of  Clainis,  in  I'smitin^'  tho 
act  iif  l^li'.l,  exincisLd  or  not  a  wludiy  distinct  jinisdiction  «onf»Tred  nimn  it   l»y  that 

Htatnto. 

H.  If  niidi'r  thatstatnti'  tin- claimant  hasohlaincd  a  partial  indemnity,  the  rnilcil 
States  can  only  claim  a  credit  for  so  miieii  of  tlie  indemnity  as  tiie  parly  lias  received 
in  that  furm.  Jn  no  other  way,  and  to  no  otiier  extent,  can  the  procecilings  in  the 
Conrt  of  Claims  all'ect  the  awards  in  these  cases. 

lie  cit*'*!  1  KiMit's  Com.,  01  ;  ^frs.  Alcxaiidor's  Cotton,  L>  WiiU.,  101  ; 
United  States  r.v.  Klein,  1.".  Wall.,  V2H;  United  States  rn.  Padellord, 
supra  ;  Brown  vs.  United  States,  8  f'raiieli,  110;  (Irant'scase,  (decisions 
C.  CIs.,  October  term,  l.SO;i  ;)  ^^lttel,  lumU  3,  c.  f),  §  75  ;  c.  7,  §  100. 

Tiit^  arjiMiments  of  the  n'spective  eoitnsel  wen^  Hh>d  in  tlie  eases  of 
James  li.  ]MeKlliose,  No.  L'L*."»,  and  of  Tiiomas  Arkwn^lit,  No.  .'iOL'. 
Many  other  cases  were  submitted  under  the  same  arguments. 

Tiie  (!ommission  unanimously  sustaiind  tlie  demurrers  in  the  eases  in 
which  suit  had  been  broii<;lit  in  the  Court  of  Chiims,  whether  still  ih'ImI- 
iiiy-  in  that  court,  or  on  appeal,  or  previously  decided,  aiul  dismissed 
those  cases. 

In  the  case  of  Eli/iibeth  Knowles,  No.  17'),  and  other  cases  in  whicli  no 
suit  had  been  brou}i;htin  tlie  Court  of  Claims,  thecommission  (Mr.  Coiii- 
missioner  Frazer  disseiitiiij;)  overruled  the  demurrers,  and  took  jurisdic- 
tion of  the  claims  upon  their  merits.  ^Ir.  Commissioner  Frazer  read  a 
written  opinion  upon  the  (piestions  involved  in  these  cases,  a  copy  of 
which  will  be  found  in  the  appendix,  G. 

2. — Claims  for  properiy  (lUofU'd  to  hare  been  irroufjfuJIjj  injured  or  destroyed 

by  the  forces  of  the  United  atates. 

These  claims  were  also  numerous,  and  involved  a  lar^e  variety  of  ques- 
tions. They  included  claims  for  property  injured  or  destroyed  by  the 
bombardment  of  towns  of  the  enemy,  as  in  the  case  of  Charles  Cle- 
worth.  No,  48;  and  in  other  ordinary  operations  of  war,  such  as  the 
passa<;e  of  armies,  the  erection  of  fortitications,  as  in  the  case  of  Trook, 
administrator,  No.  58,  &c.  Also,  claims  for  property  available  to 
the  enemy  for  military  i)urpr)ses,  or  for  the  prosecution  of  the  war, 
and  purposely  destroyed  in  the  enemy's  country  as  a  means  of  weaken- 
ing the  enemy,  as  in  the  cases  of  Samuel  H.  Uaddon,  No.  107,  and  John 
Murphy,  No.  320.  Also,  for  property  incidentally  involved  in  the  de- 
struction of  i)ublic  stores,  works,  and  means  of  transportation  of  the 
4  H 


50 


AAIKRICAX-BRITISH    CLAIMS    COMMISSION, 


onomy,  Msiii  f lie  cases  of  John  K.  Hynie,  No.  200;  diaries  Blaek,  No.  128, 
and  A.  Iv.  .Ale.Millan,  No.  2~){).  Also,  for  timber  felled  in  front  of  forts 
and  batteiii's  to  j;ive  clear  ran<;e  for  the  «iniis  and  (h'[)rlve  the  enemy  of 
cover,  as  in  the  <'ases  of  Trook,  administrator,  No.  oS,  and  ol'  William 
I>.  iJtioth,  No.  ll.'>.  For  property  alle!;ed  to  have  been  wantonly  and 
without  in'ovoeation  or  military  necessity  destroyed  or  injured  in  the 
enem.v's  eomitry,  as  in  the  eiiscs  of  Anthony  Barclay,  No.  . j ;  Godfrey 
IJariislcy,  No.  Kill,  and  in  the  ("olnmbia  (;ases. 

In  these  (;hiims  for  destrnetion  of  property,  it  may  be  stated  jjenerally 
that,  with  very  tew  e.\<'i'ptions,  and  tliost^nostly  insignificant,  no  awards 
were  mad(^  a<;aiiist  the  United  States. 

The  claims  for  injuries  by  bombardment,  the  ])assaj'e  of  armies,  the 
cnttinin-  of  timber  to  clear  away  obstructions,  the  erection  of  fortitiea- 
tions,  &.ii.,  in  the  enemy's  country,  were  all  disallowed  by  the  uiiaiii- 
moiis  voice  of  the  commissioners. 

The  same  may  be  said  of  the  iiufidental  destruction  of  innocent 
property  involved  in  the  destruction  of  public  stores  and  works  of 
the  enemy. 

In  several  eases  there  we^e  alle^j^ations  of  the  wanton  destruction  of 
properly  by  rnited  States  troops,  and  in  some  cases  Siit'sfactory  proof 
was  mad<^  of  the  liu^t  of  such  destruction  by  soldiers  with(>ut  command 
or  authority  of  tiieir  ct)mmandinj^'  ollicei's,  and  in  dellance  of  orders. 

In  the  case  of  Anthony  Ihirclay,  No.  r»,  allegations  were  made  of 
wanton  destruction  ol  i)roperty,  includinji'  valuable  furniture,  china, 
pi<ttures,  and  other  works  of  ar^,  books,  >.^(;.  The  proof  was  eontlictinjjf 
us  to  whetlier  the  injuries  alle;»ed  were  committed  by  soldiers  or  not; 
but  if  committed  by  soldiers,  it  was  i)lainly  not  only  without  authority, 
but  ill  direct  violation  of  the  ordi-rs  of  (ieiieral  Sherman.  In  the  award 
Jiiade  in  favor  of  -Mr.  Ihirclay,  I  am  advised  that  nothins;  was  included 
for  juoperty  alleged  to  have  been  destroyed. 

Several  claims  were  broiiiiht  for  properly  allejjed  to  have  been 
destroyed  by  the  burniii;^  of  Columbia,  on  the  allc.nation  tliat  that  city 
was  wantonly  fired  b_v  the  army  of  (ii'iieial  Sherman,  either  under 
liis  oi'ders  or  with  his  consent  and  permission.  A  la.'^je  amount  of  tes- 
timony was  taken  upon  this  subject,  iiieludinjf  that  of  (leneral  Hamp- 
ton and  other  coiifc<lerate  ofliecis  on  the  part  of  the  claimants,  and  of 
(leiierals  Sherman,  Lojuan,  Howard,  Woods,  and  other  I'ederal  ollicers 
on  (he  i>ait  of  the  United  States.  The  claims  were  all  disalloued,  all 
the  commissioners  agreeing, 

I  am  atlvised  that  the  commissioners  were  unanimoua  in  the  cone.Iu 
sion  that  the  contlajiration  which  destroyed  rolumlua  was  not  to  be 
ascrd)ed  to  «'ither  the  intention  or  default  of  eithei-  the  l-Vderal  or  con 
fe<lerate  ollicers.     Tiie  commission  did  »iot  pass  on  theipiestioii  whether, 
ill  case  the  city  had  been  burned  by  the  order  or  i»ermission  of  the  coin- 


AGENT'8   RErOKT. 


51 


,Ilfo.  128, 
t  of  forts 
enemy  of 

William 
only  iiiul 
•d   ill  the 

G  oil  t  ley 

<>(Mn'riilly 
lO  jiwimLs 

•lilies,  tlie 

fortifu.'Ji- 

he  uiiaiii- 

imioeeiit 
works  of 

iMietion  of 
ory  proof 
eoinmaiul 
)rders. 

ninde  of 

re,  (tliiiia, 
oiitlietiiijjj 
s  or  in)t ; 

iitlioiity, 
lie  award 

iueluded 


ive  been 
that  eity 
iM'  under 
lit  (»r  tes- 
al  ilaiiip- 
s,  and  of 
(d  oilicers 
owed,  all 

e  eonelu- 
ot    t(»    1)0 
d  or  eon 
whether, 
the  cuiu- 


mandinft-  officer,  any  liability  for  resultin}?  losses  would  have  existed 
against  the  United  States. 

The  claim  of  TIenry  E.  and  Alfred  Cox,  ^o.  220,  was  for  a  sawmill 
and  its  motive-power,  machinery,  iS:c.,  destroyed  by  raidinj?  parties  from 
General  Sherman's  army,  nerr  "Meridian,  Miss.,  in  February,  l.S);4.  The 
exi>editioii  by  which  the  mill  was  destroyed  was  sent  out  by  General 
Sherman  for  the  express  purpose  of  destro.>iiis  the  confederate  mills, 
supi)lies,  railroads,  and  means  of  transportation. 

The  i)i'oofs  showed  that  the  sawmill  in  (piestion  had  been  actually 
employed  in  the  sawin;;- of  railroad-ties  for  the  (•onfederate  government, 
and  was  available  for  this  and  similar  purposes. 

On  the  part  of  the  defense  it  was  claimed  that  the  destrucUou  was  a 
lawful  act  of  war. 

The  claim  was  unanimously  disallowed. 

The  case  of  William  Smythe,  No.  .3;}.'$,  was  a  <;laim  for  an  iron  and 
brass  foundry,  machine-sliop,  and  machinery,  fixtures,  supplies,  «&c., 
for  same,  destroyed  by  (ieneral  Sherman  in  Atlanta,  after  the  capture 
of  that  city,  and  l)efore  his  advance  upon  Savannah.  The  establish- 
ment hatl  been  employed  in  the  manufacture  of  shot,  shell,  and  other 
military  supplies  foi-  the  confederate  government. 

The  claim  was  unanimously  tlisallowed. 

The  case  of  James  and  IMidiard  ^Fartin,  Xo.  4.'M,  was  a  claim  for  the 
value  of  the  IJritish  ship  York,  wliicii,  in  January,  ISIL',  on  a  voy  ^gc  in 
l)allast  from  Valencia,  Spain,  to  Lc'wistown,  Delaware,  was  alleged  to 
have  been  driven  ashore  on  the  coast  of  North  Carolina,  one  of  the  iU' 
surrectionary  States,  and,  while  there  strande<l,  to  have  been  destroyed 
by  I'liited  States  cruisers. 

The  proofs  satisfactorily  establishe<l  that  the  vessel  was  actually 
wrecki'd  without  intent  of  her  olli(;crs,  and  while  on  a  lawful  voyages 
All  iiHicer  of  the  United  States  Navy,  believing  her  to  have  been  irdeii- 
tioiially  beached  ft)r  tlu'  purpose  of  running  in  her  cargo  i'ov  the  use  of 
the  cMemy,  ami  that  thecargo,  with  the  rigging  and  furiiiturt'  of  the 
vessel,  was  actually  available  to  the  rebels,  boarded  and  burned  her. 

'J'lie  commission  made  an  award  lor  hci  value  in  favor  ot  the  claim- 
ants, ill  which  all  Joined. 

The  case  of  James  A.  Macaulay,  No.  2(»0,  was  a  claim  for  certain  cot- 
ton, the  cargo  of  the  steamship  lUanche,  which  was  alleged  to  liavo 
sailed  from  the  port  of  Lavaiia,  Tex.,  in  June,  18()2,  and  on  her  voy- 
age to  Havana  to  have  been  pursued  by  the  United  States  war-vessel 
jMontgomery,  coiiimaiide<l  by  liieuteiiant  Hunter,  to  haw,  run  a^nound 
on  the  coast  of  the  island  of  ('aba,  and,  wliile  so  aground,  to  have  been 
boarded  by  the  crew  of  the  -Montgomery,  set  on  lire,  and,  with  her  cargo, 
totally  destroyed. 


52 


AMKRICAN-BRITISII    CLAIMS    COMMISSIOX. 


M 


1  ! 


The  case  was  nnanimoiisly  disallowed  for  lack  of  proof  of  the  mate- 
rial alleviations  in  the  memorial. 

A  large  number  of  claims  was  brongbt  for  cotton  destroyed  by  the 
United  States  forces  at  various  points  in  the  insurrectionary  States. 
Au)ong  these  were  the  cases  of  Brown  &  Sharp,  No.  33;  John  Cairns  & 
Co.,  No.  39,  aiKi  several  others,  for  cotton  destroyed  at  Camden,  S.  C; 
of  (leorj^o  Collie,  No.  4;j8;  Chri.stopher  Atkinson,  No.  380,  and  others, 
at  Columbia,  S.  C. ;  of  Samuel  liall  lladdon,  No.  107,  in  Screven  County, 
(leorgia;  of  Alexander  Collie,  No.  370,  at  Oxford,  Ga. ;  of  A.  K.  Mc- 
])onald.  No.  42;  John  C.  Forbes,  No.  300,  ami  others,  in  Arkansas  and 
Lo.iisiana  ;  and  various  other  claims  for  like  alleged  destruction  at 
different  points. 

In  several  of  these  eases  the  proof  was  clear  and  undisputed  that  the 
cotton  was  destroyed  under  exi)ress  orders  of  the  conunanding  ollicers, 
and  for  the  puri)ose  of  preventing  it  from  falling  into  the  hands  of  the 
enemy,  aiul  of  weakening  the  resources  of  the  enemy.  In  other  cases 
questions  of  fact  were  in  dispute,  as  to  the  fact  of  destruction  by  the 
United  States  forces ;  as  to  such  destruction,  if  committed,  being  by 
order  or  authority  of  any  competent  oilicer;  as  to  the  title  of  the  claim- 
ants to  the  cotton  alleged  to  have  been  destroyed  ;  and  as  to  whether 
the  cotton,  when  destroyed,  was  within  the  enemy's  country. 

The  question  as  to  the  right  of  the  United  States  to  destroy  cotton 
of  pi'ivate  owners  in  the  enemy's  country  was  discussed  by  the  counsel 
of  the  United  States  in  his  arguments  filed  in  the  cases  of  S.  If.  Haddon 
No.  107,  and  of  Urowu  and  Sharp,  No.  .'i3 ;  and  to  some  extent  in  several 
other  cases. 

On  the  sanu^  subject  arguments  were  filed  by  Iler  Majesty's  counsel 
and  by  counsel  for  the  respective  clainmnts  in  the  cases  of  S.  II.  llad- 
don. No.  107;  r.rown  and  Sharp,  No.  33;  David  Jacobs,  No.  230; 
IMartha  M.  Calderwood,  No.  300;  .John  W.  Carmalt,  No.  89;  Wood  & 
Hey  worth,  No.  103;  .hunes  IJorron,  No.  141,  and  in  some  other  cases. 

On  the  part  of  the  United  States  it  was  maintained  that  a  belligerent 
might  lawfully  in  the  enemy's  country  destroy  any  property,  public  or 
private,  the  possession  or  control  of  which  might  in  any  degree  contrib- 
ute to  sustain  the  enemy  and  increase  his  ability  to  carry  on  the  war. 
That  the  occasion  for  such  destruction  and  its  extent  must  always  be 
left  solely  to  the  discretion  of  the  invading  belligerent,  who  is  of  nect's- 
sity  the  sole  jiulge  as  to  the  recpiirements  of  his  military  position,  and 
of  the  necessity  or  propriety  of  the  destruction  of  property,  and  of  the 
extent  to  whii^h  such  destruction  shall  be  carried.  That  the  actual  own- 
ership of  such  property  within  the  enemy's  country  by  the  subjects  of  a 
neutral  power,  whether  domiciled  within  the  enemy's  country  or  not, 
did  not  relieve  such  property  from  its  liability  to  such  destruction. 
That  cotton  in  the  insurrectionary  States  was  peculiarly  and  eminently 
a  legitinuite  subject  for  such  destruction,  from  its  relation  to  the  enemy's 


.(if 

■..  >A 

'it 


agent's    RErORT. 


53 


be  mate- 


d  by  the 
y  Stiites. 
Uairns  «& 
311,  S.  C; 
[1  others, 

I  County, 
.  K.  Mo- 
ll sas  and 
ictiou  at 

[  that  tlie 

ollicers, 

Is  of  the 

ler  cases 

II  by  the 
jehig  by 
he  (ihiim- 

whether 

)y  cotton 

counsel 

Haddon 

11  several 

s  counsel 
II.  Ilad- 
S\).  236; 
^Vood  & 
cases. 

ijjerent 
ublic  or 
coiitrib- 
the  war. 
ways  be 
>f  lu'ces- 
ioii,  and 
II  of  the 
lal  own- 
.'cts  of  a 

or  not, 
ruction, 
liiiently 
enemy's 


pivernmont,  as  the  {?reat  staple  from  wliich  were  derived  the  principal 
means  of  that  jjovernment  for  the  carrying  on  of  tlie  war,  which  was  the 
principal  basis  of  its  credit,  tiie  source  of  its  military  and  naval  suppUes, 
and  on  which  it  relied  to  maintain  its  indei)endent  existence  and  to 
carry  on  the  war  against  the  United  States.  That  the  control  of  this 
stai>U*  as  to  i)roduction,  sale,  and  exportation,  had  been,  to  a  large 
extent,  assumed  by  that  government.  That  by  the  laws,  military  orders, 
and  ])ractice  of  the  Confederate  States  and  their  authorities,  the  de- 
struction of  cotton,  whenever  likely  to  fall  into  the  hands  of  their  ene- 
mies, was  enjoined  and  jiracticed,  and  that  this  practice  of  the  confed- 
erate government  and  its  oflicers  had  received  the  express  and  formal 
api)roval  of  the  British  government  as  a  legitimate  practice  under  the 
laws  of  war. 

Proofs  we.e  made  in  the  case  of  Wood  and  ITeyworth,  Mo.  103,  (proofs 
for  defense,  pp.  H),  20,  24,  37  to  47,  51  to  0.'),)  of  the  statutes  of  the 
confederate  government  in  regard  to  their  control  of  this  staple,  and 
in  regard  to  its  d('stru(!tion  when  necessary  to  prevent  its  falling  into 
the  liands  of  the  enemy  ;  of  the  practi(!e  of  the  confederate  govern- 
ment in  confrolling  its  production,  sale,  and  exi)ortation  ;  of  the  acts  oT 
its  president  ami  other  executive  and  administrative  o(Ti(!ers  in  this  re- 
gard, and  of  tlie  military  orders  and  jnactice  under  the  same  for  its 
destruction  when  exposed  to  capture  by  the  enemy.  Other  proofs  in 
regard  to  this  pra('ti(!e  of  destruction  by  the  (ionfcderates  were  made 
in  the  cases  of  James  Cumining,  No.  04;  A.  It.  ^McDonald,  Xo.  42,  and 
various  other  cases. 

The  counsel  for  the  United  States,  in  his  mgiiments,  cited  the  letter 
from  Earl  Kussell  to  Lord  Lyons  of  31  st  May,  1802,  from  the  Ibitish 
JJliie  Hook  n^lating  to  the  United  ics,  1803,  vol.  2,  p.  ;).3,  in  which 
his  lordship  said : 

ifr.  Sowiuil,  ill  liin  conversation  with  your  loitlsliiii.  rcpi'i  !,.|i  in  your  (lis)iutcli  ul'  tlie 
ICth  instant,  appearetl  to  attribnte  blame  to  thci  conftMlmurt's  t'orfl-^stroyin;;  cotton  ind 
tobiuco  in  jilact's  whicli  tlicy  t'vaciiiitc^  on  tho  approach  of  thi  i'lMJcral  fori  ix.  Hut  it 
appeals  to  be  uiirea.sonalile  to  inai<e  this  a  matter  of  bhii'ie  to  thiMii,  fur  tiiey  coiilil  not 
bo  expected  to  leave  siieli  artii  les  in  warehouses  to  beeomo  prize  of  \ViW.  anil  ti>  l.r  sold 
for  the  profit  of  the  Federal  (iovermneiit,  whieli  would  iipjily  the  pr<i<  .  .-ds  to  the  piu- 
chase  of  arms  to  be  used  a>;ainst  the  .South. 

He  cited  also  Yattel,  (Am.  ed.  of  ISOl,)  pp.  304  to  370,  §§  101  to  17:5 ; 
the  case  of  Mrs.  Alexander's  cotton  in  the  Supreme  Court  of  flu  Ignited 
States,  (2  Wall.,  404,  420;)  and  the  opinion  of  Sir  Hugh  C  lii  and  Mr. 
lleilly,  given  in  ^NLirch,  18(5."),  on  the  application  of  the  Canadian  gov- 
ernment, and  published  in  the  "  Saint  Albans  Kald,"  compiled  by  L.  N. 
Kenjainin,  Montreal,  ISC"),  page  470,  as  follows: 

Thonirh  in  the  condiiet  of  war  on  land  the  capture  by  the  ollieers  and  soldiers  of  one 
belli;ferent  of  the  private  property  of  subjects  of  the  other  bellijjerent  is  not  often  in 
ordinary  crises  avowedly  practiced,  it  is  yet  le}j[itiniate. 

Til  the  arguments  filed  by  Her  Majesty's  <!ounsel  in  the  cases  of  Brown 
and  Sharp,  Xo.  33,  and  Samuel  IF.  lladdon.  No.  107,  it  was  maintained 


54 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


that,  by  tlic  modern  law  of  war  and  tlic  practice  of  civilized  nations 
under  it,  i>rivato  i)roi)erty  <)f  non-combatants  on  land  is  exempt  from 
seizure,  contlscation,  or  d('stru(!tion,  and  that  this  juinciple  was  fully 
recoyni/ed,  in  theory  ar  least,  by  the  United  States  in  the  exercise  of 
their  belli}:ferent  rights  in  the  late  civil  war;  that  the  article  of  C(>tton» 
the  pioperty  of  non-combatants,  was  no  exc<*ption  to  this  general  prin- 
ciple, this  in  fact  haviny;  constituted  the  great  mass  of  the  proi)erty 
the  proceeds  of  which  were  allowe<l  to  i»e  recovered  in  the  Court  of 
Claims;  that  as  to  non-combatant  citizens tiie  United  States  recognized 
the  rule  of  the  exemittion  ol'  their  private  property  from  capture  ar.d  de- 
struction ;  and  that  as  to  neutral  aliens,  )eaceably  residing  in  the  United 
States,  u])()n  the  faith  of  treaties  of  amity  and  commerce,  at  least  an 
e<jually  fav(»rable  doctrine  must  be  applied;  that  if,  in  any  case,  the 
ca|)ture  or  destruction  of  such  property  became  a  militar}-  necessity, 
such  capture  or  destruction  was  accompanied  by  liability  to  compensa- 
tion. 

Her  IMajest.v's  counsel  cited  the  case  of  the  United  States  rn.  Klein, 
in  the  Supreme  Court  of  the  Ignited  States,  (13  Wall.,  128;)  ;.'  >,  the 
case  of  iMitchell  rs.  Harmony,  in  the  same  court,  (l.'J  How.,  115;)  also, 
the  case  of  W.  S.  (Irant  r,s  T'liited  States,  (I  C.  Cls.,  41  ;)  also,  Urown 
rs.  United  States,  (8  Cran(di,  110  ;)  also,  Lawrentie's  Wheaton,  Part  IV,  c. 
2,  pp.  58(5  to  OLMi,  (KJ.");;,  04(»« ;  Ilalleck,  p.  540,  ^  12;  Calvo.,  §§  4;J4,  430, 
443,  444,  450 ;  Vattel,  pp.  308-9,  §  173. 

All  the  claims  for  cotton  destroyed  in  tl;e  enemy's  country,  with  a 
single  exception,  (that  of  A.  11.  ^[cDoindd,  No.  42,)  were  disalloWuHl  by 
the  unanimous  voice  of  the  commissioners. 

]\Ir.  Commissioner  Frazer"s\  iews  ni)on  the  questions  involved  in  these 
cases  are  embraced  in  the  opinions  given  by  him  in  Nos.  41  and  225j 
lieretofore  lelerred  to,  and  to  be  found  in  the  appendix,  F  and  G. 

In  the  case  of  A.  It.  McDonald,  Xos.  42  and  334,  the  commission  n)ade 
an  award  in  f;!vor  of  the  clainnmt,  Mr.  Commissioner  Frazerdis'jentinir. 
In  that  case  the  cotton   was  allegetl  to  have  b( 


pui 


i>y 


i;JH 

^5 


claimant  princii)ally  in  Ashley  County,  Arkansas,  under  permits  issued 
by  the  ])roper  ollicers  of  the  United  States  Treasury,  under  the  statutes 
regulating  trade  in  the  insurrectionary  States,  and  the  regulations  of 
the  Secretary  of  the  Treasury  nnulc  pursuant  to  said  statutes,  and  to 
have  been  destroyed  in  the  same  region  by  United  States  forces  under 
the  command  of  (leneral  Osband,  in  February,  1805.  The.se  statutes 
and  regulations  only  authorized  trade  in  the  insurrectionary  States 
within  the  lines  of  military  occupancy  of  the  United  States  forces; 
and  it  was  contended  on  the  part  of  the  claimants  that  the  issuing  of 
such  permits  by  the  Treasury  ollicers  was  coni  rolling  evidence  tliat  the 
region  covered  by  the  i>ermits,  and  within  whicli  the  cotton  was  alleged 
to  have  been  i»urchased  and  destroyed,  was  a(  nially  within  the  military 
lines  of  the  United  States. 

On  the  part  of  the  United  States  it  was  claimed  that  the  evidence         A 
conclusively  showed  that  ut  the  time  of  the  issuing  of  the  pernnts  in 


AGENTS   REPORT. 


55 


(juestioii,  and  of  the  alleged  purcliases  iiiulor  the  same,  as  well  as 
at  Uie  tliue  of  the  alleged  destnu^tion,  the  region  where  the  cotton 
was  sitnated  was  entiiely  outside  the  lines  of  niilitary  occupancy  of  the 
United  States,  aiul  within  the  control,  civil  and  military,  of  tiu'  confed- 
<»rate  government ;  that  the  permits  in  (juestion  were  irregularly  and 
unlawfully  issued  ;  that  they  gave  no  authority  to  the  claimant  to  i)ur- 
ciiase  within  the  district  in  (piestion  ;  that  the  cotton  was  purchasi'd,  if 
tt  all,  within  the  enemy's  country,  and  under  collusive  arrangements 
between  the  claimant  and  the  confederate  cotton  bureau  ;  that  the 
permit.,,  "ven  if  valid  when  i»*sued,  allorded  no  protection  to  the  cotton 
when  actually  within  the  enemy's  lines  at  the  time  of  its  destruction; 
that  tlie  claimant,  by  his  uidawful  dealings  with  the  (Miemy,  had  for- 
feitetl  any  possible  right  which  he  might  have  had  under  his  alleged 
permits,  and  that  the  claim  was,  to  a  large  extent,  fraudulent,  both  as 
to  the  alleged  purchase  and  destruction. 

Tiie  entire  claim  of  this  claimant  amounted,  including  interest,  to  over 
><'>,0'"M>'*'>-  'J"''^  award  was  for  the  sum  of  !«jI'.)7,llM>,  including  interest. 
1  am  advised  tliat,  in  the  making  of  this  award,  the  majority  of  the  com- 
mission did  not  intend  to  depart  from  the  i)rinciple  Leld  by  them  in  the 
otiier  claims  for  c.  tton  destroyed  ;  but  that  they  regarded  the  permits 
as  controlling  evidence  that  the  region  where  the  cotton  was  situated 
was  within  the  lines  of  Federal  occupancy. 

The  case  of  John  Turner,  No.  44,  included  a  claim  for  a  dwelling- 
housi:  of  the  claimant,  situated  near  the  field  of  Fair  Oaks,  in  Virginia, 
alleged  to  have  been  for  several  weeks  occu|)ied  as  a  hosi)ital  by  the 
army  of  (Jeneral  MeCMellan,  in  the  spring  of  ISflL*.  It  was  alleged  by 
the  claimant  that  large  stores  of  medicines  and  hosi)ital  su{)plies  had 
accumulated  in  this  house,  and  that  upon  the  retreat  of  (leneral  Mc- 
Clellan's  army,  it  being  impossible  to  save  the  stores  so  accumulated, 
the  dwelling-house  was  burned,  with  its  contents, by  the  Federal  officers, 
in  order  to  prevent  these  stores  from  falling  into  the  hands  of  the  enemy. 
The  proofs  substantially  sust  rued  these  allegations. 

An  award  was  made  in  favor  of  the  claimaiit,  in  which  I  am  advised 
that  the  majority  (,f  the  comnii^sion  included  an  allowance  in  respect  of 
the  destruction  of  the  house  in  questu)n.  Mr.  Commissioner  Frazer 
joined  in  the  award  ;  but  in  his  comi»utation  of  aim)unt  included  noth- 
ing for  the  house.  In  no  otlu'r  case  was  any  award  made  for  the  nu*re 
destruction  of  buildings  within  the  insurrectionary  territory  not  per- 
manently reclaimed  to  the  possession  of  the  United  States;  and  this 
award  was  therefore  an  excei»tional  one,  and  not  within  the  principle  by 
which  the  commission  was  governed  in  other  cases. 

The  cases  of  A.  R.  McDomdd,  Xos.  42  and  ;{;]4 ;  of  John  Turner,  No. 
44;  an<l  of  J.  •S:  1{.  Miirfjn,  No.  f.'U,  were  the  oidy  cases  in  which 
awards  were  made  for  the  mere  destruction  of  property  within  the  in- 
surrectionary States. 


56 


AMKRICAN-BRITISH    CLAIMS    COMMISSIOX. 


3. — Clahns  for  properly  alleged  to  have  been  destroyed  by  the  rebels. 

In  tlie  case  of  John  11.  Ilanna,  Xo.  2,  the  nu'inoiial  allejjcd  in  otfcct 
that  tlic  chiiinant  wa.s  the  owner  of  SI!)  baU's  of  cotton,  sitnated  wiUiiu 
the  rebel  States  of  Louisiana  and  Mississippi,  and  that  "without  fault 
of  petitioner,  aj^fainst  his  consent,  aiul  by  force  and  arms,  said  cotton 
was  (U'stroyed  by  rebels  in  arnjs  against  the  (loverninen  t  of  tlie  Unittd 
States  juior  to  the  year  18({;{."  IJy  tlie  scheduk\s  annexed  to  his  me- 
morial and  made  a  i)artof  the  same,  it  appeared  that  the  cotton  in  ques- 
tion was  destroyed  by  orders  of  the  authorities  of  the  Confederate 
States  and  of  the  rebel  State  of  Louisiana,  for  the  purpose  of  preventing 
the  same  from  f '^'ing  into  the  haiuls  of  the  Federal  forces. 

A  demurrer  to  t  ;e  memorial  was  interposed  ou  behalf  of  the  United 
States. 

On  the  argument  of  the  demurrer  it  was  contended  by  Her  ^faj- 
esty's  couns<'l,  on  behalf  of  the  dainmnt,  timt  the  a(;ts  of  destru(^tiou 
alleged  in  the  nu'morial  api)earing  to  have  been  deliberately  committed 
under  the  orders  of  the  commander  of  the  forces  of  the  Confederate 
States,  and  with  the  comnu'rent  authority  of  the  governor  of  the  State 
of  Louisiana  and  commander  of  tiie  trooi)s  of  that  State,  reclamation 
must  lie  on  behalf  of  the  British  government,  in  the  interest  of  the  claim- 
ant as  a  subject  of  that  government,  against  the  United  States  as  rep- 
resenting and  iiuiluding  the  Stati;  of  Louisiana,  as  well  as  all  tlie  other 
States  Ibrming  the  so-called  Confederiite  States ;  that  the  persons  en- 
gaged in  these  acts  of  destruction  were  uot  liable,  either  civilly  or  crimi- 
nally, either  for  reparat'on  or  [)unishment  in  respe(!t  of  those  acts,  they 
having  been  committed  in  the  course  of  militarj-  operations  under  the 
authority  of  the  existing  government,  whether  lawfid  or  usur[»ed. 

That  for  the  wrongful  acts  of  the  several  States  in  respect  to  foreign 
nations  or  their  subjects,  reclamation  could  be  made  oidy  against  the 
United  States,  to  the  Government  of  which,  by  its  Constitution,  was  re- 
served the  i)ower  of  maki'ig  treaties,  declaring  war,  ami  making  pea(!e, 
and  all  internatiomd  powers  generally,  tlu^  same  being  denied  to  the 
individual  States;  that  no  foreign  nation  could  negotiate  with  or  nuike 
demand  upon  individual  States  in  respect  of  silch  acts,  but  could  deal 
only  with  the  Covernment  of  the  United  States  ;  that  in  case  of  wrongs 
comnntted  by  any  State  upon  fon'ign  nations,  in  regard  to  which  that 
State,  if  wholly  iiulependent  ami  not  a  member  of  the  Federal  Union, 
would  be  liable  to  reclamation,  and  to  be  called  to  account  in  the 
mode  jnacticed  between  nations — by  treaty  or  by  Mar — these  renu'dies 
against  such  State  being  denied  to  foreign  powers  by  the  Constitution 
of  the  United  Stater,  the  liability  for  reparation  devolved  upon  the 
United  States,  and  the  Federal  (Jovernment  must  be  In^ld  to  answer  as 
well  for  tlu^  a(!ts  of  the  authorities  of  its  several  constituent  States  as 
for  those  of  the  Federal  (lovernment. 

That  the  so-called  secession  of  the  State  of  Louisiana  and  the  other 
States  forming  the  so-called  Confederate  States  did  not  extinguish  or 


I 


^ 


AGENT  8    REPOKT. 


57 


siisiKMid  the  liabilitj-  of  tlie  United  States  for  wrongrul  acts  coiimiitted 
by  said  States. 

That  by  tlie  treaties  of  1704,  1815,  and  1827,  the  United  Slates  had 
stip'dated  with  (Jreat  llritain  for  the  jnotection  of  her  subjects  in  the 
Stf.teof  Lonisiana,  as  well  as  in  all  other  territory  of  the  Cnited  States; 
that  the  United  States  not  having-  allowed  the  claim  of  Louisiana  to 
be  released  from  her  constitutional  obligations  and  restrictions,  bnt 
having  hehl  her  to  her  constitutional  obligations,  and  having  insisted 
that  their  ])olitical  relations  with  foreign  powers  were  in  no  wise  affected 
by  the  insurrection  in  the  Southern  States,  and  that  the  (lovernment 
of  the  United  States  was  rightfully  supreme  in  Louisiana  and  the  other 
States  ill  rebellion,  and  having  finally  maintained  its  authority  over 
those  States,  its  liability  to  Great  Britain  for  violation  of  tiiese  treaties 
by  those  respective  States  remaiMcd  precisely  as  if  there  had  been  no 
insurrection  or  civil  war. 

Her  Majesty's  counsel  further  conteided  that,  as  a  principle  of  inter- 
national law,  if  the  rightful  governiiu'iit  of  a  country  be  displaced  and 
the  usuri)ing  government  be(;omes  liable  for  wrongs  done,  such  liability 
remains,  and  devolves  on  the  rightful  government  when  restored  ;  that 
this  principle  equally  applied  when  the  usuvpation  was  only  partial ; 
that  the  restored  and  loyal  government  of  Louisiana  was  liable  for 
wrongs  done  by  the  insurrectionary  govornment  of  the  sameSti;<^e;  and 
that  it  was  only  by  the  provisions  of  the  Cmistitution  of  the  United 
States  that  the  State  of  Louisiana  was  ])revented  from  being  coini)elled 
to  discharge  that  liability  toward  foreign  governments,  and  that  on 
this  ground  the  Government  of  the  United  States  must  be  held  respon- 
sible for  the  acts  of  the  State  of  Louisiana. 

lEe  cited  in  suj)port  of  these  pro])ositions  the  treaties  of  18ir>  and 
1827  between  thb  United  States  and  Great  Britain,  (8  Stat,  at  L.,  ]).  228, 
art.  1 ;  id.,  3(11,  art.  1 ;)  Phillimore,  vol.  1,  pp.  30,  94,  139;  Wheaton,  p. 
77;  Constitution  of  the  United  States,  art.  1,  sec.  10;  Works  of  Daniel 
"Webster,  vol.  3,  p.  .321  ;  id.,  vol.  (5,  pp.  -09,  2.~>3,  2(l.".  ;  U.  S.  Att.  (Jen.  Op., 
vol.  1,  p.  392;  Tlie  United  States  vs.  Palmer,  3  Wheat.,  Sup.  Ct.  R., 
210;  The  Collector  r.s'.  Day,  11  id.,  113,  124  to  120;  The  Prize  Cases,  2 
lilack,  035  ;  the  treaty  between  the  United  States  and  Great  Britain  of 
August  9,  1842,  (8  Stat,  at  L.,  575,  art.  5 ;)  and  the  acts  of  Congress  of 
December  22,  1SG9,  (10  Stat,  at  L.,  59,  00,)  and  of  April  20,  1871,  (17 
id.,  13  to  1.5.) 

The  argument  on  behalf  of  the  United  States  was  summed  up  as 

follows : 

First.  That,  whiitovcr  may  1»o  tlio  relations  of  tho  separate.  States  of  tlio  Union  to 
tlie  Government  of  the  Uniteil  States,  it  is  manifest  that  no  responsil>iIity  ean  attaeh 
to  the  United  States  for  tlie  destrnotion  of  tli(>  claimant's  property  nndei'  cohir  of  the 
authority  of  the  State  of  T.onisiana,  1>('(:mis(>  its  desti'tietion  was  not  aiithorizfd  l>y  any 
otHeials  representinj?  or  anthorized  to  repre.sont  or  act  for  the  State  of  Louisiana  under 
the  Constitntimi  and  hiws  of  the  United  States.  There  ean  he  no  h'^^.tinuite  ollieers  of 
a  State  to  constitute  its  government,  except  such  us  have  taken  au  oath  to  support  tho 


w 


I       I 


58 


AMKKICAN-BUITI.SH    CLAIMS    COMMISSION. 


f  ' 


Coi'Htitiitioiiof  tlioUnit(Ml  Statt's.  All oUuth are  iihiiii)i'1'.s  iiml  protLMidors.  But,  further, 
a  Stati'  of  tilt'  Union  lias  no  political  cxistt-ncti  \vlii<'li  can  bo  or  han  hctsu  rt'cojfniz.'d  l>y 
(iifat  Britain,  cxct'iit  as  a  jiart  of  tlio  Ijiitctl  States,  in  subordination  to  tius  National 
GovoriinHMit.  Tlio  robclH,  who,  by  usurpation,  undortotdi  to  act  for  tho  Statu  of  Lou- 
isiana, dticlai'fd  their  action  to  be  in  beliaif  of  thu  Statu,  which  they  claimed  as  a  com- 
ponent part  of  another  and  lioslile  nation. 

Secondly.  The  destruction  of  the  claimant's  cotton  was  done  under  the  ordtsr  of  the 
commander  of  a  military  force  eui^a^^ed  in  hostilities  aj;ainst  the  United  States,  and 
whose  acts  (Jreat  Britain  had  reco]ijni/ed  as  those  of  a  lawful  belli;;<utmt,  liavin;;  all 
the  rifjhts  of  war  aj^ainst  the  United  States  that  any  foreif^n  invader  could  have  had. 
The  men  ]>r(»fessin;i  to  act  as  the  local  anthoriti«!s,  inconcnrrinn  in  the  order  ol(h'strno- 
tiou  acted  as  the  assistants  and  allies  of  the  hostile  and  belli<r(<rent  power,  and  sub- 
ject to  its  control.  It  is  as  ijbsnrd  to  hold  the  United  States  resitonsibh!  in  tlie  (sase  of 
Ifanna  as  it  would  be  to  Imlil  i''r;in('e  responsible  for  t\w  destruction  of  tin;  ])ropi'rty  of 
a  British  subject  in  the  ]»art  of  France  held  by  the  (Jerman  armies  in  the  late  war,  nn 
the  fjround  that  a  French  ollicial,  at  the  head  of  some  (irrDiidixscminl  or  comminif,  mii;lit 
have  joined  in  the  ordt;r  of  the  Gernuin  forces  for  its  beiuij  done,  he  having  been  put  in 
oHice  or  retained  there  by  the  (Jcrman  forces  for  the  very  i)urposo,  and  havinjf  lirst 
renounced  hisalleyianc*!  to  France  and  taken  an  oath  of  allu}j[iance  to  Germany. 

Tliecoiuiuissiou  iinaniuiou.sly  sustained  the  deiniirier  iu  the  following 
award : 

The  claim  is  made  for  the  loss  sustained  by  the  destruction  of  cotton  belonging;;  to 
th(!  claimant  by  men  who  are  thiscribed  by  the  claimant  as  rebijls  in  arms  aj^ainst  tho 
Government  of  the  United  States. 

Tho  commissioners  are  of  opinion  that  tho  United  .States  cannot  be  htdd  liable  for 
injuries  caused  by  the  acts  of  rebels  over  whom  they  could  exercise  no  control,  and 
which  acts  they  had  no  power  to  prtsvent. 

L'pou  this  •jnmnd,  and  without  j;iviu;f  any  opinion  upon  tho  other  points  raiseil  iu 
the  case,  which  will  be  considered  hereafter  in  other  cases,  the  claim  of  John  Holmes 
llanna  is,  therefore,  disallowed. 

Mr.  Coininissiouer  Frazer  read  an  opinion,  whieh  will  be  found  iu  the 
appendix,  U. 

This  was  among  the  earliest  of  the  decisions  of  the  commission,  and 
it  is  understood  that  iu  consetiueuce  of  it  a  large  number  of  claims  of 
similar  character  awaiting  presentation  were  never  presented  to  the 
commission. 


The  cases  of  Liinrie,  Son  &  Co.,  No.  321 ;  Samuel  Irviu  &  Co.,  No. 
.322,  and  Valentine  O'Brien  OX'ounor,  No.  404,  likewise  arose  out  of 
property  destroyed  by  the  rebels;  but  in  each  of  them  it  was  attempted 
on  the  part  of  the  claimants  to  take  tho  case  out  of  the  decision  iu 
Ilan nil's  case. 

In  «ach  of  the  cases  it  was  alleged  that  the  nhiimant  was  the  owner  of 
tobacco  stored  in  the  State  of  Virginia  at  the  breaking  out  of  the  re- 
bellion; that,  early  in  tho  year  18(51,  the  ports  of  Virginia  were 
blockaded  under  the  proclamation  of  the  President  of  the  United  Stiites, 
and  before  the  claimants  coidd  remove  their  proi)erty  by  lainl,  the 
Congress  of  the  United  States,  by  act  of  13th  June,  1801,  prohibited 
the  transi)ortatiou  of  merchandise  from  Virginia  into  the  loyal  States, 
except  uiuler  license  ami  permission  of  the  President,  aiul  iu  pursuance 
of  rules  to  be  prescribed  by  the  Secretary  of  the  Treasury ;  and  that 


aoknt's  report. 


59 


and 


undor  the  rules  preserilied  tlie  eliiimiiuts  were  unaMe  to  remove  the 
tobacco.  In  tln'  cases  of  Laurie,  Son  «&  Co.  and  Irvin  &  Co.  it  was 
allejjed  tliat  the  tobacco  remained  stored  in  I'iehmond  until  the, 
buiniiijijj  of  that  city  by  the  rebels  on  the  .'id  April,  l.S(».~>.  In  the  case 
of  O'Connor  it  was  further  alle^'ed  that  in  April,  1<S(J."),  claiiinmt  si'ut  a 
vessel  from  Ireland  destined  for  Kichinond,  for  the  purpose  of  earryin<; 
away  his  tobacco,  which  vessel  arrived  at  ITami)ton  IJoads  in  .Tune, 
IS(ir),  but  was  warned  olf  by  a  j)ublic  armed  vessel  of  the  United  States 
and  compelled  to  return  to  l)ul)lin  without  the  tobac(!o.  In  this  <;ii,se  it 
vas  further  allejjed  that  a  part  of  the  tobacco  was  destroyed  by  the 
conHajiiation  kindled  by  order  of  the  (H)nfederate  authorities  on  the  .'hi 
April,  l.Sii,") ;  that  another  portion  was  destroyed  by  an  ac(!idental  tiro 
in  .March,  18(»;{,  but  whi(!h  oc(!urred  in  cons(Mpien(!e  of  the  disturbed 
condition  of  atfairs  then  existing  in  Ricjhmond;  that  another  portion 
Avas  seized  for  taxes  levied  by  the  confederate  gfovernment,  and 
another  i»ortion  used  and  destroyed  by  the  anthorities  oi  the  Confeder- 
ate States  for  experimental  purposes;  and  it  was  alle;;ed  that  all  these 
losses  of'  Mr.  O'Connor  weve  solely  in  conse<iuence  of  the  failure  of  the 
Unite<l  States  to  maintain  and  enforce  their  authority  in  the  State  of 
Virginia,  and  to  suppress  the  civil  and  military  disorders  then  existing 
there. 

A  demurrer  was  interposed  on  behalf  of  the  United  States  in  each  of 
the  three  cases. 

Her  Majesty's  counsel  fded  an  argument  in  Nos.  321  and  322,  iu 
which  he  contended  that  the  memorials  showed  a  case  when^,  by  the 
acts  of  the  United  States,  the  claimants  were  prevented  from  removing 
their  tobacco  from  the  seat  of  war,  where  it  was  exposed  to  danger;  and 
that  but  for  such  prohibition  they  would  have  removed  and  saved  it ; 
but  that  they  were  compelled  to  leave  it  in  the  hostile  country,  where  it 
ultimately  perished  from  one  of  the  tlangers  incident  to  the  war;  that 
the  acts  of  the  United  States  alleged  in  the  memorial,  by  winch  the 
claimants  were  prevented  from  removing  their  tobacco,  were  not  lawful 
acts  under  international  law. 

That,  by  the  statute  of  13th  July,  ISGl,  (12  Stat,  at  L.,)  commercial 
intercourse  between  the  States  in  rebellion  and  the  loyal  States  was 
l)rohibited,  subject  only  to  the  license  and  permission  of  the  Tresident 
"  in  such  articles,  and  for  such  time  and  by  such  persons  as  he  in  his 
discretion  may  think  most  conducive  to  the  |Miblic  interest,  and  such 
intercourse,  so  far  as  by  him  licensed,  shall  be  conducted  and  carried  on 
oidy  in  pursuance  of  rules  ami  regulations  prescribed  by  the  Secretary 
of  the  Treasury ;"  that  by  the  regulations  issued  by  the  Secretary  of 
the  Treasury  under  this  act,  a  tax  was  iniposed  upon  such  permits,  and 
a  special  tax  upon  property  to  be  brought  out  under  them,  and  it  was 
provided  that  such  permits  should  only  be  granted  to  loyal  citizens  of 
the  United  States. 

That  this  act  and  the  subsequent  legislation  of  the  United  Staces  did 


60 


AMERICAN-nRITISH    CLAIMS    COMMISSION. 


not  i>rovi(lo  for  blockade  or  noii-intprconrso  Jure  helli,  but  were  acta 
re}?nlatiii,i;"  iiitercoiirHo  by  nmiiicipal  .statute  bet\v<'('ii  ditlcrent  sections 
of  tlie  territory  of  the  United  States ;  tliat  these  statutes  \v<>rk«Ml  in- 
justice to  the  chiiniaiits,  and  deprived  them  of  priviU'ges  to  which  they 
were  entitkHl  by  the  tn^aty  between  the  United  States  and  Great  Uritain  ; 
tliat  the  h)S8  of  the  prope.  ,,/  in  question  was  caused  by  theni,  and  there- 
fore was  a  k'gitimate  subject  of  international  reclamation  before  the 
conunission. 

That,  considering  the  prohibition  in  the  light  of  a  belligerent  act,  the 
United  States  were  bound,  in  analogy  to  maritime  blockade,  to  allow  a 
reasonable  time  for  the  claimants  to  bring  out  their  property;  and, 
in  further  analogy  to  the  law  of  nniritime  blockade,  that,  as  a  belliger- 
ent cannot  blockade  a  port  against  neutrals  while  he  allows  his  own  or  his 
enemy's  nnMcliant- vessels  privilege  of  ingress  and  egress  for  the  i)urposes 
of  trade,  the  United  States  cannot  rightfully  permit  their  own  citizens 
to  trade  with  the  insurgents  under  permits,  while  prohibiting  trade  to 
neutral  aliens  and  others  without  permits. 

lie  cited  the  letter  of  ^Ir.  Cass,  Secretary  of  State,  to  Mc  Mason, 
United  States  minister  to  France,  in  June,  185!),  reported  in  Dana's 
Wheaton,  G72,  n. ;  1  Kent's  Com.,  1M\',  The  drey  Jacket,  5  Wall.,  ;M2; 
The  William  Jiagaley,  id.,  408 ;  The  United  States  vn.  Lane,  8  Wall.,  L85 ; 
The  Francisca,  10  Moore's  P.  C.  R.,  87  ;  The  Ouachita  Cotton,  0  Wall., 
531 ;  ^Mitchell  r.s.  Harmony,  l.J  llow.,  llo. 

The  commission  unanimously,  and  witiiout  hearing  argument  for  the 
United  States,  sustained  the  respective  demurrers,  and  disallowed  the 
claims. 

In  the  case  of  James  Stewart,  ^o.  339,  it  was  alleged  that  the  claim- 
ant, having  purchased  certain  cotton  situated  upon  the  Mississippi 
Kiver,  at  Dead  Man's  Bend,  below  Natchez,  sent  a  steamboat  to  remove 
the  cotton,  but  that  the  steamboat  was  improperly  forbidden  to  land  by 
the  captain  of  a  gun-boat  then  cruising  opposite  the  place  where  the  cot- 
ton was  stored :  that  the  claimant  was  thus  prevented  from  removing 
his  cotton,  which  was  soon  afterward  burned  by  rebel  scouts. 

Various  questions  of  fact  arose  in  this  case  as  to  the  title  of  the  claim- 
ant ;  but  it  was  maintained  on  the  part  of  the  United  States  that,  upon 
the  facts  a'leged,  no  reclamation  could  lie  against  the  United  States ; 
that  the  discretion  of  the  commanding  officer  of  the  gun-boat  as  to  per. 
mitting  or  not  permitting  vessels  to  land,  even  for  the  removal  of  prop- 
erty for  which  permits  from  the  civil  authorities  were  held,  was  abso- 
lute; and  that  the  alleged  act  of  the  officer,  in  prohibiting  the  steam- 
boat from  ajjproaching  the  land  and  removing  the  property,  was  within 
the  scope  of  his  authority,  and  in  the  exercise  of  his  duty  ;  that  the 
subsequent  destruction  of  the  property  by  the  rebels  was  not  a  neces- 
sary or  natural  consequence  of  any  wrongful  act  of  the  United  States  or 
any  officer  of  the  United  States,  ami  that  no  liability  existed  against 
the  United  States  in  respect  of  the  transaction. 

The  claim  was  disallowed,  all  the  commissioners  agreeing. 


T 


aoknt's  heport. 


Gl 


4.— Claims 'for  <h(mi((j<s  for  ((llq/cd  ivroiKj/ul  ttrrvst  and  unprinonmcnt. 

Tliose  claiins  were  one  IiiiiidrtMl  in  immlu'r,  and  tlie  total  nnioinit  of 
(laiiia^-csclaiiiuMl,  in  all,  was  ni-arly  ><l(),(KH),(><><>.('Xcliisivo  of  intnvst ;  or, 
adding;  interest  at  the  rate  allowed  by  the  eonirnission,  say  !?l(i,(10(»,(MU). 

In  thirty-tonr  of  the,  cases  awards  were  made  in  favor  of  the  claimants 
a^-ainst  the  United  States,  in  all  amonntinf*-  to  $l(;7,1lll.  In  sixty-fonr 
cases  these  claims  were  disallowed;  one  case  was  <lismissed  without 
prejndice  for  inipertinent  and  scandalous  lansua<»e  used  in  the  memorial, 
an«l  one  was  withdrawn  by  Her  Majesty's  ay:ent  by  leave  of  the  commis- 
sion. 

The  (jnestion  early  arose  before  the  commission  whether  in  case  of 
death  prior  to  the  presentation  of  the  claim  of  the  party  a^-ainst  whose 
person  the  wroii^d'ul  acts  were  alle<>ed  to  have  been  (committed,  the  claim 
for  such  injuries  was  to  b»>  considered  as  surviving:  to  the  personal  rep- 
resentatives. This  (piestion  was  raised  by  demurrer  interposed  on  behalf 
of  the  United  States,  in  tln^  cases  »)f  Edward  McUu;;h,  Xo.  3.j7  ;  Eliza- 
beth Sherman,  No.  359 ;  and  Elizabeth  IJrain,  No.  447. 

In  the  case  of  Mrs.  Sherman,  No.  3.")!),  all  connection  between  tlie 
injuries  alleged  and  the  death  of  the  intestate  was  disclaimed  by  the 
memorial. 

In  the  cases  of  Mrs.  r>rain.  No.  447,  and  of  IMcIIugh,  No.  3.")7,  there 
were  allegations  that  the  injuries  complained  of  caused  or  contributed 
to  cause  the  death  of  the  intestate;  but  there  was  no  allegation  of  any 
local  statute  allowing  damages  in  favor  of  jiersonal  representatives  for 
a  wrongful  injury  causing  death. 

On  the  part  of  the  United  States  it  was  claimed  that,  as  by  the  com- 
mon law  both  of  Great  IJritain  and  of  the  United  States,  claims  for 
injuries  to  the  person  did  not  survive  to  the  personal  representatives, 
such  claims  were  not  to  be  considered  as  within  the  submission  by  arti* 
cle  12.  That  the  claims  which  by  that  article  were  submitteil  ccndd  not 
be  taken  to  comprehend  claims  of  a  character  not  recognized  by  the 
municipal  laws  of  either  of  the  countries  parties  to  the  treaty. 

Her  Majesty's  counsel  contended  that  the  munici[>al  laws  of  the  two 
countries  were  not  to  be  taken  as  controlling  the  rights  of  claimants  iu 
this  regard  ;  that  claims  for  injuries  to  the  person,  whether  such  injuries 
caused  death  or  not,  were,  in  the  di[)lomatic  intercourse  of  civilized 
nations,  treated  as  a  proper  subject  ol"  interuiitional  redamaiion  iu 
behalf  of  the  personal  representatives  of  the  person  injured  aifer  his 
death.  lie  cited  the  practice  of  the  commissions  under  the  conventioa 
between  the  United  States  and  New  Granada,  of  10th  Septembei-,  18."37, 
(12  Stat,  at  L.,  98,"),)  and  under  the  treaty  of  Guadalupe  Hidalgo,  of  L*d 
February,  1848,  between  the  United  States  and  Mexico,  (9  Stat,  at  L., 
933,  art.  13.) 

In  the  case  of  McHugh,  No.  357,  where  the  deceased  died  unmarried 
and  leaving  only  callateral  relatives,  not  dependeut  on  bim  for  sui»port, 


62 


AMKUirAN-ninrisii  tlaims  commission. 


entitled  to  itiliorit,  tliu  coiiiinisMioii  uiianitnou.sly  sti.staitKMl'the  demurror 
and  disiillowud  the  (tlaiin. 

Ill  tlic  caHi's  of  Mrs.  Slicrman,  No.  .'{r»0,  and  ^Nlrs.  Brain,  Xo.  147,  in 
l)(»tli  wliii'h  t'as«'s  till'  dtM'«'as('d  left  a  widow  and  minor  cliiMrt'ii,  the 
coiiiinissioii,  Mr.  Coiiiinissioiu'r  Frjizcr  disscntiiiji',  ovcrnilcd  tlKMlcinnr- 
ivrs.  .Mr.  ('oiiiinis.sioiu'r  I'^ra/cr  read  an  ((pinion  tor  sustaining'  tlu>  dciniir- 
ri'is  in  each  of  Ww,  thn'O  cases,  whii^h  will  lie  found  in  the  apiiendix,  1. 

It  may  beachled  that  on  liiial  hearin;;'  on  the  merits  tlu^  elaiin  of  Mfh. 
Sherman  was  niianiiiionsly  disallowed;  and  though  an  award  was  made 
(Mr.  Commissioner  I'ra/er  disseiitinj;)  in  favor  of  Mrs.  Ilraiii  on  account 
of  property  taken  from  her  husband,  that  award  included  no  damaj^cs 
for  imprisonment. 

Tin' followinjj  cases  are  seU»cted  as  (dass  cases  illiistratin^'  the  hold- 
inin's  of  the  commission  u[>on  the  various  (piestions  involved  in  these 
claims. 

ill  the  case  of  Kriu'st  A\'.  ''ratt,  No.  0,  it  was  allejjed  that  the  claimant 
arrived  in  Xew  VorU  on  a  IJritish  mail-steamer  from  Nassau,  on  the 
iiijiht  of  the  17th  March,  ISO") ;  that  before  leavin<>'  the  vessel  ho  was 
arrested  by  order  of  (Jeiieral  IJix,  then  in  command  of  the  United  States 
forces  in  and  around  New  York,  liis  lu{;j;a{{e  and  papers  seandied,  and 
lie  himself  committed  to  i)risoii,  where  In^  was  detained  until  the  li-lith 
June  followiiifj,  a  period  of  one  hundred  and  seven  days,  when  ho  was 
discharged  without  trial. 

That  he  had  received  at  Nassau,  from  the  United  States  consul  there, 
an  endorsement  upon  his  discharfjo  from  the  steamship  City  of  Kich- 
nioiid,  of  wliicli  he  had  been  tirst  mate,  certifying  that  he  was  entitled 
to  jiass  to  the  United  States  as  a  British  suUjc(!t,  which  certifhiato  had 
been  given  to  him  by  the  consul  with  the  assurance  that  it  had  all  the 
ett'ect  of  a  regular  passport. 

It  ain>eared  that  in  Ot'tober,  18fiD,  ho  had  been  about  to  commence 
suit  against  General  Dix:  toreitover  damages  for  his  false  iminisonment, 
and  his  counsel  having  informed  the  Se<;retary  of  State  of  the  United 
States  of  his  intention  to  bring  such  suit,  the  Secretary,  by  letter  to  his 
counsel  in  answer,  suggested  whether  it  was  not  expedient  to  "await 
tln!  result  of  the  delilieration  of  this  (the  United  States)  (Jovernment 
and  that  of  (Jreat  Britain  ni)on  a  proposition  for  the  establishment  or 
adjudication,  among  other  things,  of  claims  like  that  of  3Ir.  Pratt ;" 
and  the  claimant  averred  that  in  conformity  with  this  suggestion  he 
omitted  to  bring  his  suit  against  General  Dix. 

The  City  of  liichmond,  of  which  vessel  the  claimant  had  been  first 
mate,  had  been  engaged  in  January,  18(i5,  in  carrying  crew,  arms,  and 
ammiinitiou  from  Loudon  to  the  rebel  cruiser  Stonewall,  which  received 
substantially  ber  entire  crew  and  armament  of  small-arms  and  ammuni- 
tion by  that  means.  On  parting  with  the  Stonewall,  the  City  of  Rich- 
mond steamed  to  Bermuda,  and  the'uce  to  Nassau,  where  her  otUuers  and 


'  domurror 

Xo.  447,  iti 
ililrt'ii,  the 
Im^  (Iciniii- 
tlic  demur- 
M)i'ii(Iix,  1. 
Ill  ol'  Mrs. 
was  inado 
»ii  account 
>  (lainaifcs 


the  liold- 
ill  these 


^  chnniaiit 
II,  on  the 
el  he  was 
ed  States 
i'lied,  and 
the  25th 
II  lie  was 

snl  tliere, 
'  of  Kich- 
s  entitled 
ic-ate  had 
id  all  the 

luninence 
isoninent, 
le  United 
ter  to  his 
o  "await 
eminent 
liinent  or 
.  Pratt;" 
^stiou  he 

eeii  first 
fins,  and 
received 
ammuni- 
of  Ricb- 
cers  and 


AHKNT's    IJKrORT. 


(53 


men  were  dis('hai';j«Ml,  the  claimant  immediately  proceedini^to  New  Yinic, 
as  above  stated. 

The  (ilaimant  alle,ii:ed  in  his  memorial,  however,  thai  ho  shipped  upon 
the  City  of  KMchmoiid  in  <i:iu»\  faith  lor  an  ordiiiiiry  voya;;('  to  tlie  West 
Indies,  and  without  iufonuatiou  or  suspici(ui  that  ''her  voya;^e  was  in 
any  way  coune('te<l  with  eitlier  of  the  lielli,i;ereu(  parties  iu  the  Tiiited 
States,''  and  that,  on  llndiii;^'  her  eiii,'ay'ed  iu  supplyiiijj;  the  Stonewall, 
he  had  protested  to  his  capiaiu,  who  paid  iio  attention  to  his  i)rot«'st, 
and  re(|uired  him  to  obey  orders  on  pain  of  arrest  i\u'  mutiny.  The  fact 
of  the  claimant's  haviu;^  bcM'ii  thus  ('n;;,ii;;t'd  on  the  City  of  liichmond 
was  reported  to  (leneral  I)ix.  ami  this,  in  i'onuectiou  with  his  arrival  in 
New  York  Irom  Nassau,  constituted  the  yrounds  of  his  arrest  by  (leneral 
Dix. 

On  the  part  of  the  Ignited  States  it  was  claimed  that  the  fact  of  the 
chiimaut's  havinj;'  been  actively  enj;aji'ed  in  aitliii;;  the  enemies  of  the 
United  States,  and  that  he  innuediatt'ly  thereal'ter  came  fr«)m  Nassau, 
the  principal  [lort  in  the  Atlantic  from  which  intercourse  with  the  States 
in  rebellion  was  kept  up  through  the  blocka<le,  to  New  York,  Justitied  the 
autlKuities  of  the  United  States  in  arresting;  and  holdiii';'  him  both  as  a 
prisoner  of  war  and  as  a  probable  spy. 

On  the  part  of  the  claimant  it  was  contended  that  there  was  no  proof 
of  any  olfen(;e  committed  by  the  claimant  ayainst  the  laws  of  the  United 
States,  or  the  laws  or  prin»  iples  of  neutrality.  Tiiat  even  if  he  had 
voluntarily  particii)ated  in  the  cruise  of  the  ( 'ity  of  lvl(;hmond  to  ecpiip 
the  Stonewall,  this  fact  would  have  furnished  uo  Justitication  for  his 
subsecpieiit  arrest  in  New  York,  tiiouyh  it  mijiht  have  sullic cd  to  «leter- 
niine  Her  31ajesty's  <jovernment  not  to  interlere  for  his  prote(!tion  or 
indemnity.  That  the  informality  in  his  passport  was  caused,  if  not  (con- 
trived, by  the  United  States  consul  at  Nassau,  and  that  the  assnraiKic 
by  that  ollicer  to  the  (daimant  that  the  passport  was  a  sulllcientone  was 
iu  bad  faith,  and  made  with  a  view  to  the  claimant's  arrest  when  he 
should  arrive  in  the  city  of  New  York,  the  consul  haviujx  sent  by  the  same 
ship  a  letter  addressed  to  (Jeneral  Dix,  j^ivin;;"  him  the  information  upon 
which  he  acted;  and  thatthecIaimant'sim[Misonment  was  unnec(\ssarily 
ami  unjustly  severe  and  prolonj;«'d. 

Tiie  commission  unanimously  awarded  to  the  claimant  the  sum  of 
$1,2(10. 

The  cases  of  John  C.  Kahmin;;,  No,  7;  Joseph  Eneas,  No.  120;  and 
Joseph  W.  liinney,  No.  ;3.>2,  were  of  substantially  the  same  character, 
and  were  all  deci<led  at  the  same  time.  These  claimants  were  all  dom- 
iciled in  the  city  of  New  York,  and  there  enj^ased  in  tra<le.  All  were 
carrying  on  a  considerable  trade  with  the  port  of  Nassau,  and  were 
arrested  on  the  charjie  of  carrying  on  an  unlawful  traftii;  with  the  enemies 
of  the  United  States  under  color  of  their  trade  with  Nassau.  Kahining 
and  Eneas  were  both  arrested  on  the  31st  December,  1803,  and  conttued 


w 


64 


AMKKICAX-IJK'ITISU    CLAIMS    COMMISSION. 


lunlor  juilit'iry  autlioiit^-  in  Fort  r.afii.v<'tto,  until  -Inly  2,  ISOI,  ami  tluMi 
(li.s('liai<;(Ml  without  tiial,  ou  jiivinj;'  bonds  lor  tiu'ir  appearance  if  eallcd 
on  lor  trial  by  tlie  United  States  authorities.  IJahniinj^  ha«l  also  been 
previously  arrested,  on  a  charjieol"  haviii;n- shii»ped  arms  to  the  rebels,  in 
Septembei-,  ISOI,  aiul  had  then  been  «letained  as  a  |m  isouer  in  Foit  Lalay- 
ett«'  for  tilteen  days.  IJinney  was  arrested  on  the  Itth  .Tiiiu',  ISiit,  im- 
prisoned in  Fort  Lafayette  undei'  military  authority  for  ti\"e  weeks,  and 
then  transferred  to  a  Jail  in  thecntyof  New  York,  where  he  was  detained 
seventeen  days  lonjLjerand  was  then  discharged  by  General  l)ix  without 
any  [jonds  or  security  r«M|nired. 

In  i'aeh  of  tluise  cases  it  was  alleged  by  t\w  claimant,  and  proofs  were 
taken  in  support  of  such  alle;^ations,  that  the  claimants  were  iiuiocent 
of  the  olV»  nces  charj;ed  aj^ainst  them;  that  their  imprif-onment  was 
unn<>(!essarily  and  imitrojit'rly  protracted  ;  and  that  tlu'y  received  im- 
proper and  unnecess.  iily  severe  treatment  dnrin;jf  their  imiuisonmeiit. 
Proofs  w«  "  taken  on  the  part  of  the  l'nil<'d  States  to  show  the  chai}>es 
a}»ainst  liu'Ui  well  founded,  and  to  rel»nt  the  char;;es  of  improper  treat- 
nuMit.  In  each  of  the  cases  allc.uations  were  also  made  of  lar^e  result- 
\i\i£  d;nna,u('s  to  the  claimants  by  r«'ason  of  their  imprisonnu'ut. 

JJahmin.'^,  I»y  his  nu'morial.clainu-d  damajies.'j',")S(>,S(»(l,  besides  interest. 
He  was  awarded  by  the  majority  of  the  commissitMi  (.Mr,  Commissioner 
Fra/er  disseidiny    on    the   (pM'stion    of  amount   taerely)    the   sum   ef 

Fneas  claimed  dama;,'es  .'»'7:.*(>J>(>(>,  besides  int;'rest,  and  was  awarded 
$l,r)l(t,  ;dl  tlie  (Hunmissloneis  joininji". 

Iiinney  daimeti  ^l <>(»,( too,  b«'si<les  interest,  and  was  awarded  $."),.'J90, 
all  the  commissioners  ioinin<^. 

Iti  ea<'hof  the  eases  1  am  advi^ied  that  the  decision  turned  upon  (puvs- 
ti<n!s  of  fa<rt,  all  the  <*ommissiotiers  aurcein;;  that  the  proofs,  tl'on;jfh 
snllicii'tit  to  warrant  the  arrest  in  each  case,  did  not  h'uve  the  truth  of 
the  charges  free  lr(»m  doubt  :  anil  that  the  de  <'ntion  of  tiu'  prisoners 
witlumt  trial  was  unueci'ssariiy  protrai'ted.  Mi.  Conunissioner  Frazer 
read  an  opinion  in  the  ease  of  Ualimin;;',  which  will  be  found  in  the 
ai»peMdi.\,  I. 

In  the  case  of  John  Cai'villo  Stovin.  Xo.  I'.'J,  chiiir.iint  was  arrested  at 
Cuudx-rlaml,  .AM.,  in  <)ctol)er,  ISilL  on  the  charge  of  disioyally,  in 
attendi!i;4  sect'ssiou  meetin;4s  in  ("uiMberland,  and  liein^  the  means  of 
lransmittin;.j  information  to  the  eutuiy.  He  was  taken  to  Fort  Mc- 
Henry,  there  detained  for  altoui  ti'.;-  weeks,  and  disehar}i;<'d  without 
ti'ial.  lie  alle;j;ed  that  hi.s  busini'ss  as  a  mannfacluri-r  at  ('umliciland 
was  stopped,  and  in  elle«*t  desti'oy«Ml  by  his  iirrest,  and  claimed  dam 
a^es  !*.!>'<», "!•  I. U7,  besides  interest;  incbMlii};,  however,  some  (he  wood, 
hay,  corn,  ami  oats,  allej^cd  to  have  been  taken  and  appropriated  l>y 
the  I'nitcd  States  stddiers.  lie  alleju'cd,  als(),  ill  ircatment  while  in 
conlinenn  :!f,     Proofs  were  taken  on  both  sides  on  the  ijuestion  of  hi'* 


m 


Ji 


■V 

t 


AG EXT  S    REPORT. 


65 


ami  tliou 

if  called 

ilso  l)e»'n 

kIx'Is,  ill 

lit   liillll.V- 

1H(;|,  iiii- 
;cks,  aiul 
•li'tiiiiu'd 
i  witliout 

Kits  were 
iiuiocj'iit 
uMit  was 
■ivcd   iiii- 

SOIlUil'llt. 

'  cliaryt's 
K»r  tieat- 
;c'  it'sult- 

infcrcst. 

iissioiii'i' 

siiiii   <d' 

awarded 

$.",,;?90, 

II    IjlUVS- 

truth  of 
isoiiers 
l''i:i/(>r 
in  the 


ted  at 
illy,  in 

CilllS  oi' 

>H  Me- 
vvidioiit 
•erliiiid 
d  dam 
wnod, 
itcd  (»y 
lile  ill 
of  Li** 


W 


disloyal  ooiidnet,  and  i'.  was  eont<'iided  on  the  part  of  the  United  States 
that  tlu^  facts  (»f  the  <!ase  Justilied  his  arrest  as  a  disloyal  person, 
openly  ;;ivin^-  aid  and  comfort  to  the  rebellion  by  his  lanj'iiajje  and 
expressions  of  synipa'.liy,  in  a  villa<(e  situated  upon  the  frontiers  v.  the 
enemy's  country,  and  where  such  <!oiiducb  involved  danger  tt)  the  mili- 
tary opeiiitioiis  of  the  Unitei  States. 

i)n  the  part  of  the  claimant  the  char^res  of  disloyal  «'onduct  and  laii- 
};iia;i'e  were  denied,  and  proof  whs  adduced  to  show  him  a  law-abiding 
and  peac.'alile  inhabitant. 

The  <:oiiimissioii  <;avejin  award  to  the  claimant  of  $S,3()0,  al!  the  com- 
missioners joiniii;^. 

In  the  case  of  Frank  Ifiissell  IJeadiiifr,  Xo.  43,  t1  e  claimant  was 
arrested  in  the  city  of  Washiiiy:ton  on  the  Oth  July,  1  .^(54,  that  city  then 
beiii}»:  tlircateiied  by  the  rebel  forces  under  (liMieral  Itlariy;  was  brouj;ht 
to  trial  before  a  military  commission  in  Washinjiton  on  iln>  charjje  of 
utterinj;  disloyal  and  treasonaiile  lanjiua^e  in  the  District  of  Cidumbiii 
when  threaieiuMl  l>y  the  enemy,  such  lanj^iia^e  bein<!;  cahMi'.atcd  to  give 
aid,  comfort,  and  assistance  to  the  eiieuiy.  He  was  found  j.;iiilty  by  tho 
commissicui,  and  s«Miten<ted  to  imprisonment  for  live  years,  with  iiard 
li'lior.  at  the  Dry  T(utu;ras,  or  such  other  military  prison  as  the  Secretary 
of  War  iiiiju'lit  sele(;t.  ITuder  this  sentence  he  was  imjnisoned  at  Fort 
J)elaware  from  the  .'>(Uh  Auju^nst,  ISlii,  till  1st  .lune,  ISO,"), 

On  the  part  of  the  lJiiit»'d  States  it  was  contended  that  the.  militiiiy 
commissiot,  was  a  lawful  tribunal,  competent  for  the  trial  and  piiiiish- 
nieiit  of  military  otfences,  and  liavinj^  full  jurisdiction  of  the  cas«-  of  tho 
<'laimant.  both  as  to  subject-matter  and  person;  that  at  the  time  of  his 
arrest  and  trial  Washington  was  a  city  in  military  occupation,  environed 
l)y  foits  of  the  United  States,  o(!cupied  and  defended  by  their  armies, 
the  lieadciiiarters  of  the  ('ommander-in-("hief  of  the  Army  and  Navy  of 
the  United  States,  and,  as  the  capital  of  the  country,  always  a  \  ital 
]»«»iiit  of  attack  for  the  rebel  forces,  and  at  this  specific  time  tin?  airtuaj 
objective  point  of  a  vij;oroiis  and  determined  at'ack  by  the  enemy,  who 
actually  reached,  as  their  advanced  post,  on  the  li'th.liily,  l-'ort  Stevens, 
within  the  limits  of  the  Distrii;t  of  Columbia  and  within  four  or  five 
miles  of  the  Capitol. 

That  the  oifence  (diar^od  ap;ainst  Readinpf  was  a  purely  military 
otleiice,  ol'  which  the  civil  tribunals  had  not  cof^nizance,  and  so  was  not 
within  the  priinMple  held  by  the  Siii»reme  Court  in  the  case  of  Milli|j;aii, 
(MVall.,  L'.) 

That  IN'adinj;  haviii*?  appeared  in  person  and  by  counsel  before  tim 
military  tribunal,  and  haviiifj  pleaded  in  chief,  without  raising; any  <pieH- 
tion  to  the  jurisdiction,  could  not  be  heard  to  (piestion  the  jtirisdiirtlou 
of  the  tribunal  as  to  his  person  merely:  and  that  the  commission  hav- 
injj;  by  law  jurisdiction  of  the  sul)ject-matter  of  tho  clnu};e,  tho  failure 
to  object  to  jurisdiction  us  to  the  person  obviated  uU  question  us  to 
5  II 


66 


AMERICAN-IJRITISH    CLAIMS    COMMISSION. 


their  coinplete  jiiiisdiction.  The  eomi.sel  for  the  United Htutes  cited  the 
ca«e  of  \'idljiiidigham,  (I  AVall.,  I'i.'i.) 

On  tlic!  part  of  the  chiiinant  it  was  contended  that  the  military  trihu- 
i)al  had  no  jnrisdiction  whatever,  and  tiiat  the  iniprisonnjcnt  of  the 
chiiniant  nndi'r  it  was  wholly  without  authority  of  law. 

The  commission  gave  a  unanimous  award  in  favor  of  the  claimant  for 
$15,400. 

In  the  case  of  .John  J.  Shaver,  Xo.  .II,  the  inenH)rial  alle;j;tM[  that  the 
claimant,  beinj^  at  the  tinn'  domiciled  in  Canada,  but  triivcllin«;-  in  the 
United  States  on  the  business  of  the  (irand  Tinnk  Itailway  ComjKiny, 
a  ('ana<lian  corporation,  of  whicii  he  was  an  a<,'ent,  was  arrested  at 
Detroit,  on  the  l.")th  October,  1801,  by  direction  of  3Ir.  Seward,  theSei;- 
retary  o{  State  of  the  United  States;  that  he  was  taken  theiujc  to 
Fort  Lafayette,  in  New  Vork  Harbor,  and  con  lined  tbeie,  and  subse- 
quently at  Fort  Warren,  in  Uoston  Harbor,  until  the  (Uh  .January,  1S()2. 
He  allejied  that  by  his  arrest  he  was  thrown  out  of  lucrative  emi»loy- 
inent  as  aj^i'ut  of  the  railway  (U)m|)any  name<l;  that  by  it  he  lost  the 
contidence  of  his  employers  and  was  unable  to  rejiain  his  position  after 
his  n'lease;  ami  that  he  sulfereil  large  pecuniary  losses  in  conseipience. 
He  claimed  damages  .m  100,000. 

The  arrest  was  made  ui>on  information  communicated  to  !\Ir.  Seward 
that  the  claimant  was  enga^^etl  in  conveying  communications  between 
the  rebels  in  Canada  and  those  within  tlu'  insurrectionary  States.  The 
proofs  failed  to  sustain  the  charge,  ami  it  appeared  that  Mi'.  Kennedy, 
chief  of  poli(!e  of  the  city  of  New  Vork,  imnu'diaiely  after  the  arrest  of 
the  claimant,  reported  to  the  State  Department  that  In;  f()und  m*  proofs 
to  warrant  his  detention,  or  to  injplicate  hinj  in  any  impro[)er  comnumi- 
cation  with  the  enemy. 

The  tronunission  awanled  the  claimant  !i«'M),204,  Mr.  Commissioner 
Frazer  tlissenting  on  the  tpu'stion  of  anu)unt  oidy. 

In  the  case  of  Samuel  (1.  Levy,  No.  01,  it  appeare«l  that  the  claimant, 
a  resident  of  Canada,  on  landing  in  Doston  from  a  IJritish  steamshi[» 
from  Liv«'rpool  in  May,  ISIJI,  was  taken  theuj^e  to  New  V(nk.  an«l  ther»' 
detained  for  al>out  eight  days,  on  a(!harge  of  being  eng.igcd  in  blockade- 
running.  At  the  en«l  of  that  time  he  was  discharged  upon  giving  bail 
for  hisappearancH'  within  six  nu)nths,  if  re([iured.  He  alleged  large  con. 
se(puuitial  damages  by  interference  with  hisdue  attention  to  his  business, 
and  by  the  enforced  breaking  of  an  engagement  of  marriage  in  conse- 
He«]uence  of  his  arrest,  ami  <',laiined  as  damages,  CJO,Oi)0. 

The  commission  unanimously  gave  him  an  iiward  of  ^WMi. 

Tn  the  case  of  James  Stott,  No.  271,  it  appeared  that  the  claimant, 
domiciled  in  the  Stat<M)f  Main**,  was  arrested  at  Dexter,  Me.,  September 
2,  l.S<}.{,<ui  the  charge  of  being  a  desertiT  from  a  <'avalry  regiment  in  the 
United  States  service;  was  sent  theuceto  the  regiment  from  which  b"  was 


AGENT  8    IIEPORT. 


07 


uitcd  the 

ly  trilm- 
i»t  of  the 

mant  for 


tliat  the 

W 

1^-  in  the 

1 

otnpaiiy, 

i 

■ested   at 

.  the  Ht'e- 

'(■ 

hence  to 

d  Hubse- 

■ ')': 

iiy,  1S02. 

1 

eini»h>y- 

1 

.'  h)yt  the 

1 

ion  alter 

i 

stMineiiee. 

'^-i- 

'.  Seward 

between 

1 

es.    The 

1 

vcnnedy, 

1 

arrest  of 

1 

no  proofs 

1 

'ontnumi- 

A 

nissioner 

1 

claimant, 

teaniship 

md  there 

ilockath'- 

vinj;-  bail 

, 

ar^e  eon. 

bnsiness, 

in  eonse- 

clainiant, 
t'pteinber 
nt  in  the 
ch  h'^  was 


alleged  to  have  (h'serted,  at  Warrenton,Va.,  where  it  plainly  ajMM'ared  that 
tlie  ehar;je  was  unfounded,  it  beinj;a case  of  mistaken  identity.  lit'  was 
detained  until  the  Uth  of  Novend)er,  ISIJ.');  and,  for  the  purpose  of  makinj,' 
hint  some  compensation  as  to  loss  of  tinu',  an<l  of  j;ivin<>'  him  trans|)orta- 
tion  back  to  his  honu',  was  mustered  into  the  United  iStates  service  and 
discharj^c'd  with  the  pay  of  a  private  soldier  for  the  time  he  hatl  been 
detaiiu'd,  ami  with  traiisportation  back  to  his  home. 

An  award  was  made  for  >ifl"}  in  favor  of  the  claimant,  in  which  all  the 
commissioners  joined. 

.Tohn  I.  Crawford,  Xo.  71),  was  arrested  in  the  city  of  New  York,  on 
the  10th  of  May,  ISfil ;  st'nt  to  Fort  Lafayette,  aiul  there  detained  until 
the  -7th  of  .luly,  18(14,  when  he  was  broniLfht  to  trial  before  a  military 
eommission  in  the  city  of  Xew  York,  on  the  charge  of  violation  of  the 
hiws  of  war,  in  passing' throuj>h  the  military  lines  of  the  enenjy,  lirst, 
from  South  Carolina,  by  way  of  Jii<!hmond,  to  New  Vork  ;  second,  from 
New  Vork  again,  by  way  of  Nassau  ami  Wilmington,  through  the  block- 
a(h>,  to  South  Carolina  ;  and  again  from  South  (Carolina,  by  way  of  liich- 
moml,  to  Xew  York ;  ami  also  by  pun^hasing  goods  in  Xew  Vork,  and 
seuiling  tluMU  thence  through  the  lines  to  liichmond,  A'a.  lie  was 
convicted  on  all  the  specihcations  e.vcei)t  that  relating  to  the  purchasing 
and  sending  of  goods,  a.id  was  sentem;ed  to  give  bonds  in  such  sum 
aiul  with  such  sureties  as  should  be  satisfactory  to  the  general  in  com- 
mand of  the  department,  that  he  would  not  visit,  trallic,  or  correspond 
with  the  States  in  rebellion,  nor  give  aid,  comfort,  or  inf(  .  :nation  to  the 
enemy  during  tin?  war,  in  default  of  giving  siu-h  bonds  to  be  (iontined 
at  hard  labtu*  during  the  war.  Tiie  bond  was  imnjediately  given,  and 
Cra\vf(U'd  was  discharged.  The  proofs  betbre  the  commission  fully  sus- 
tained the  tindingsof  the  military  tribunal. 

On  the  part  of  the  <;laimant  it  was  contemled  that  the  military  tri- 
bunal was  without  Jurisdiction,  and  that  the  claimant's  imprisonment 
and  detention  were  unlawful. 

The  menunial  claiuu-d  !«<r>(M),(M)0  as  damages,  and  the  eommissiou 
unanimously  disallowe<l  the  claim. 

In  the  ease  of  .lolin  Carmoily,  No.  S,"),  it  appeared  that  the  claimant, 
domiciled  in  New  Orleans,  Mas,  in  March,  IS(jr),  conscrii>te<l  into  the 
military  service  of  the  United  States;  the  notice  of  his  conscription 
HMpiiring  him  to  report  for  military  service  was  addressed  to  him  l»y 
the  nanu»  of  John  Kenuly,  and  on  receiving  it  he  jinMuired  from  the 
Jbitish  consul  at  New  Orleans  a  certilicate  of  his  liritish  nationality, 
which  he  alleged  that  he  j)resented  to  the  ollicerin  charge  of  the  oriice 
nt  which  he  was  re«iuire<l  to  report,  but  two  days  after  was  arrested  by 
a  s(piad  of  United  States  soldiers,  and  was  detained  in  a  military  prison 
for  some  live  or  six  weeks.  The  arrest  and  detention  evidently  arose 
from  mistake  growing  out  of  the  confusion  of  names.    The  memoriu 


1 ,' 


ty 


68 


AMERICAX-imiTISFI    CLAIMS    COMMISSION. 


V, 


I' 


t'laiiiMMl  $100,000  damajjos.  besido.s  interest,  siiul  the  commission  iinani- 
moiisly  awarded  the  ehiimaiit  8r)00. 

In  the  ease  of  William  Patriek,  No.  07,  it  ajjpeared  that  the  claimant 
a  fJritish  merchant,  domiciled  in  Xew  York,  was,  on  the  2Sth  An^jiist, 
IS'Jl,  arrested  and  (committed  to  Fort  Lafayette,  where  he  was  detained 
till  the  l.'Jtii  September  followinj;,  when  he  was  dis(d) arched.  His  arrest 
was  l>as<>d  on  the  char^je  that  the  firm  in  New  York  of  which  he  was  » 
iiiemher,  and  which  had  a  branch  house  also  at  3Iobile,  Ala.,  was 
a  channel  for  carrying;  on  correspondence  between  rebels  in  liUrojie  and 
those  in  the  insurrectionary  States.  Kepresentations  by  highly  respect- 
able citizens  of  New  York  of  Mr.  Patri(^k's  loyalty  were  made  to  the 
Secretary  of  State,  and  the  IJritish  minister  also  intervened  in  his  behalf. 
Jnvestifiiiiion  showed  that  the  charj^e  a,ii;ainst  .^Ir.  Patrick  was  without 
foundation,  and  he  was  discharjjed  after  a  conllnement  of  seventeen 
days.  The  i)roof's  established  Mr.  Patrick  to  have  been  a  •^fentleman  of 
high  social  and  business  standing;,  and  also  to  have  been  in  conduct 
marlvcd  by  loyalty  and  }j;ood  faith  toward  the  Government  durinj^^  the 
rebellion,  and  to  have  furnished  liberal  contributions  in  its  aid.  Jlis 
arrest  was  undoubtedly  caused  by  false  or  erroneous  information. 

On  behalf  of  the  claimant  punitory  danjafjes  were  claimed.  On  the 
l)art  of  the  United  States  it  was  insisted  that  no  sueh  daHm<?es  could 
be  allowed  ;  that  Mr.  l*atrick,  domiciled  within  the  United  States,  was 
e.\i»oscd  in  the  same  dejjfree  with  citizens  ot  those  States  to  arrest  on 
falsccliarjics  or  oroneous  information,  and  tiiat.  havin.i(  been  dlscharj^ed 
Avitiim  a  reasonable  time  for  in<piiry  to  be  nmde,  he  was  not  entitled  to 
claim  damaj^es  ajjfsiiust  the  United  States.  That  if  any  dama;;es  were 
awarded  to  him,  they  should  be  such  only  as  would  afford  him  fair  com- 
])cnsation  for  the  injury  inllicted. 

The  memorial  claimed  !i«100,000,  besides  interest.  The  commission 
awarded  th«^  claimant  8">,100,  Mr.  Commissioner  (lurney  dissenting  on 
the  question  of  amount. 

In  tlie  case  of  Joseph  J.  P»evitt.  No.  101,  the  claimant,  until  that  time 
domiciled  in  South  Carolina  and  Virginia,  left  l{ichnu)n«!  in  Ai)ril,  1S(;;{, 
and  pas,s«Ml  tiuouyh  the  rebel  lines  tt)  the  I'otomac  Jliver,  was  there 
taken  on  board  a  United  States  transi^rt  steamer  on  the  ^}Oth  April, 
l.S(»ii,  taken  to  Washington,  detained  in  the  Old  Capitol  i»rison  until  the 
]'.Mh  May,  and  then  sent  back  into  the  confederacy. 

On  the  part  of  the  claimant,  it  was  contended  that  lievitt,  being  a 
iJritish  subject,  and  not  having  olVended  against  the  laws  of  the  United 
States,  or  taken  part  in  the  (hnnestii!  st'ife  then  in  progress,  was  enti- 
tled to  su(!h  egress  without  molestatio',i  by  the  public  authorities. 

On  the  part  of  the  United  States  it  was  maintained  that  the  attempt 
of  the  claimant  to  enter  the  loyal  jmrtion  of  the  United  States  from  the 
enemy's  country,  and  through  bis  military  lines,  after  having  voluntarily 


AGENTS    REPORT. 


69 


ttoinpt 
oin  tlio 
iilarily 


romiiiiiod  within  tlio  oneiny's  country  diiriii",'  two  years  of  tli*^  war,  was 
oiii'  wiiicli  the  United  States  luijiht  lawfully  i»revent  or  imiiisli,  and 
that  their  seinlin^'  hitn  liaek  into  the  enemy's  country,  from  which  he 
came,  was  an  act  permitted  by  public  law. 

The  commission  disaUowed  the  claim,  .Mr.  Commissioner  Gurnoy  dis- 
senting'. 

In  the  case  of  William  Ashton,  No.  ;>U.">,  the  claimant,  until  then  domi- 
ciled in  the  State  of  South  Carolina,  in  February,  lS(i.;,  came  north 
through  th«  Federal  lines  under  a  pass  from  the  confederate  (Jeneral 
Lee,  and  while  crossin<j  the  Potomac  River  into  the  State  of  Maryland 
was  arrested  l»y  the  naval  patrol,  on  the  7th  l-'ebruary,  ISil.i.  lie  was 
taken  to  \Vashinj;ton,  there  detained  until  the  11th  May,  1S(m,  and  then 
sent  back  throujjh  the  liiu's  into  the  eiu'iiiy's  country. 

On  the  part  of  the  United  States  it  was  contended  that  the  case  was 
parallel  with  that  of  lievitt,  above  reported,  ami  that  the  arrest,  deten- 
tion,  and  return  of  the  claimant  were  lawful  acts  under  the  reco<;iiiz('d 
laws  of  war. 

The  c(»mnjissi(Mi  awarded  to  him  the  sum  of  !^i»,00(>,  ^Ir.  Commissioner 
Frazer  ilissentinj;. 

The  undersij;-ned  finds  dilUculty  in  reconciling  the  decisicm  of  the 
commission  in  thiscase  with  that  in  the  case  of  JJevitt.  It  may  be  luttetl, 
however,  that  Hevitt  was  detained  but  twenty  days  before  being  sent 
back,  while  Ashton  was  detained  three  months  and  four  days. 

In  the  case  of  Thomas  Harry,  No.  I'JT,  the  <'laiinant,  (lomiciled  at  Xew 
Orleans,  alleged  that,  on  the  l.")th  March,  ISill,  he  was  arrested  witluuit 
any  cause  or  provocati(m,  butar  utrarily  and  maliciously,  Ity  a  provost- 
marshal  umU'r  the  onh'rs  of  (Jeneral  Uanks,  then  in  command  of  the 
dei»artnient;  was  committed  to  the  parish  prison,  there  conlined  for 
ten  weeks,  and  then  released  on  giving  a  bond  conditioned  that  ho 
should  report  daily  to  the  provost-marshal  in  the  city  of  New  (hleans. 
That  he  (continued  so  to  report  until  the  ."(Ist  December,  ISOt.  when  the 
bond  was  cancelled  and  the  claimant  fully  discharged,  lie  claimed 
<lamages  !<r>(>,0(KK  The;  proofs  showed  that  he  was  arr<'steil  in  the  act 
of  clandestinely  and  in  disguise  attempting  to  pass  tVom  New  Orleans 
through  the  lines  into  the  enemy's  cor.ntry,  having  upon  his  person  let- 
ters to  residents  within  the  enemy's  lines,  and  carrying  confederatti 
money — the  use  of  which  was  forbidden  by  the  Federal  antlnuitics. 
That  only  two  mtuiths  bebu-e  he  had  peipet rated  the  sanu'  oHence  in  the 
same  disguise;  had  visited  many  place's  within  the  enemy's  lines,  and 
had  returne'l  into  the  Federal  lines  in  the  same  clandesliiu!  manner. 
Jh'forehis  j  rrest  he  had  applied  for  permits  to  go  within  the  confederate 
lines  for  the  alleged  purpose  of  lookinjf  up  and  bringing  back  cotton 
alleged  to  have  been  owned  by  him;  but  such  permission  had  been  re- 
fused. 

The  claiui  was  unanimously  disallowed. 


I.'i 


70 


AMKKICAN-nRITISII    CLAIMS    COMMISSION. 


! 

ll 


In  the  case  of  Ilcmy  (Jlovor,  No.  131,  the  claimaiil,  a  rosidont  of  tlio 
State  of  (leoryia,  was,  in  Xoveniher,  18(54,  in  company  with  a  companion, 
in  Jones  County,  Geoiffia,  within  the  enemy's  ttnritoiy,  overtaken  by  a 
detachment  of  cavah'y  from  the  coi'iis  of  (Jeneral  Kilpatiick,  formiiifjf  a 
]):iit  of  tin;  llankin";-  force  of  (ieneral  SheiMnan's  army  in  themardi  from 
Atlanta  to  Savannah.  His  (;<)mpanion  lied  and  was  tired  upon;  claim- 
ant waited,  was  arrested  and  detained  for  twenty-four  hours,  when  he 
Avas  discharj^ed,  it  ai)pearin{5  that  he  was  a  civilian  and  a  llritish  sub- 
ject. 

J  lis  claim  was  disallowed,  all  the  commissioners  ajjreeiny. 

The  case  of  Thonnis  IT.  Facer,  No.  203,  was  similar  in  character  to 
that  of  Glover,  and  was  disallowed  in  like  manner. 

In  the  case  of  the  administrators  of  James  Syme,  No.  130,  it  ai)peared 
that  the  de(;edent!  had  been  for  many  years  domii^iled  at  New  Orleans, 
and  there  carrying;  on  a  larf>(^  trade  as  a  wholesale  and  retail  drujip;ist ; 
that  on  the  L*,Sth  August,  18(52,  he  was  arrested  and  taken  before  ]MaJor- 
General  IJutler,  then  in  command  of  the  department  of  the  Gulf,  and 
there  arrai;;ned  on  charges  styletl  in  the  nx'inorial  "  false,  wicked,  and 
malicious,''  to  the  effect  that  he  had  aided  and  abetted  the  so-called 
confederates  by  the  shipment  of  sulphur,  drujjs,  and  medicines  into 
tlH'ir  lines,  and  that  he  had  violated  his  neutrality.  General  IJutler? 
beinj;  satislied  of  the  truth  of  the  char<»es,  coin  inned  him,  without  the 
intervention  of  any  court  or  military  tribunal,  to  be  imi)risoned  at  Fort 
IMckens  for  three  years  at  hard  labor  with  ball  and  (;hain  ;  the  ball  ami 
chain  were,  however,  within  a  few  days,  and  before  the  commencement 
of  execution  of  the  order,  remitted.  He  was  detained  in  confinement  at 
New  Oiieans  for  about  six  weeks;  then  scut  under  guard  to  l-'ort  I'ick 
ens,  in  i'cnsacola  Harbcu-,  Florida,  and  there  confined  until  about  the 
1st  Mar(!h,  18(53,  when  h<-  was  l)rought  back  to  New  Orleans,  and  there 
detained  during  an  inv«'stigation  by  a  military  commission,  which  re- 
l)orted  him  not  guilty  of  the  charges  ni)on  which  he  was  iini)risoned' 
iVnding  the  proceedings  of  this  commission  lui  was  discharged  from 
confinement  by  order  of  General  jlanks,  who  had  succeeded  General 
JJutlcr  in  command,  on  giving  a  bond,  with  surety,  in  the  sum  of  82(),(K)(), 
conditioned  for  his  appearance  on  recpiireinent  by  the  Go\ernment. 
Upon  the  report  of  the  commission  the  bond  was  canceled  August  28, 
18(53.  At  the  same  time  with  liis  arrest  his  drugstore  and  contents,  in 
New  Orleans,  were  seized  and  appropriated  to  iho  use  of  the  United 
States,  and  remained  in  their  possession  until  about  the  1st  May,  18(54, 
when  the  store,  with  so  mucli  of  the  stock  of  «lrugs,  &i;.,  as  had  not  been 
usetl,  was  surrendered  to  his  possession  by  order  of  the  War  Depart- 
ment. 

A  large  amount  of  testimony  was  taken  on  both  sides  upon  tlie  ques- 
tion of  his  guilt  or  innocence  of  the  charges  on  which  he  was  impris- 
oned. 


AGENTS    REPOUT. 


71 


'lit  of  tlio 
iDpaiiioii, 
ikon  bv  n 


irch  from 
II ;  claim- 
,  wlion  lie 
itish  sub- 


iiacter  to 


ai)i)oaro(l 

•  Orleans, 

ilrnji<i;i.st ; 

>re  3Iajor- 

(Julf,  and 

L'Uod,  and 

so-called 

iiies  into 

al  ])ntler» 

tlioiit  the 

d  at  Fort 

ball  and 

Miceinent 

ement  at 

(ut  Tick 

bont  the 

lid  there 

which  re- 

)risoned' 

•cd  from 

( I en era! 

*LM),()0(>, 

t'ninient. 

.Uiist  2S, 

tents,  in 

^   United 

iiy,  18(54, 

not  been 

Uepart- 

lie  ques- 
i  impris- 


on thepartof  the  United  States,  it  was  also  proved  that  the  decedent, 
ill  NoviMiiber,  ISOl,  and  a^ain  in  March,  ISOL',  had  accepted  commis- 
sions as  surgeon — lirstwith  the  rank  of  captain,  and  afterwards  with  the 
rank  of  major — in  the  battalion  of  the  Louisiana  State  militia  tlesi*;. 
nateil  as  the  Uritish  Fusiliers ;  that  this  battalion  was  a  rejiularly  orjjan- 
i/ed  portion  of  the  State  militia  of  tiie  rebel  State  of  rjonisiana,  but  was 
orj^anizcd  niK'cr  the  reservation  that  its  members  should  be  required  to 
serve  only  within  the  limits  of  the  city  of  N»»w  Orleans  ;  that,  on  the 
acceptanc«^  of  these  commissions,  the  decuMleiit  was  re(piinMl  by  law 
to  take,  and  did  take,  an  oath  faithfully  to  discharf'e  the  duties  of  the 
oHice  to  wiiicli  he  had  been  appi)iiited,  and  to  support,  protec't,  and  de- 
fend the  const itution  of  the  State  of  Ijoiiisiana  and  of  the  ('on federate 
States  ;  that  at  the  time  of  accepting  tliest;  commissions,  respectively,  the 
decedent  was  above  tiu^  aj^e  of  forty-livt^  years,  and  was  exempt  by  the 
lawsof  the  State  of  liouisiana  from  militia  service,  by  reason  of  a}>e,  even 
if  otherwise  liable  by  reason  of  nationality  or  domicile.  ICviilence  was 
also  jiiveii  on  the  part  of  the  United  States  to  the  effect  that  Dr.  Syme, 
shortly  after  the  occupation  of  Xew  Orleans  by  the  Federal  forces,  re- 
fused to  sell  medical  and  surgical  supi>lies  to  medical  ollicers  of  the 
United  States  Army.  Dr.  Syme  died  in  Janiulry,  1.S72,  befon*  the  t\\\\\>* 
of  the  memorial,  leavinj;-  a  widow  and  one  son  entitleil  to  inherit  his 
estate,  both  born  within  the  United  States  and  always  domiciled  there. 

On  liie  part  of  the  United  States  it  was  (contended  that  by  the  ac- 
ceptance of  tiiese  commissions  and  tlie  takinj;  of  the  oaths  above 
reciteil.  Dr.  Syme  had  <lei»rived  himself  of  the  condition  of  a  neutral 
alien  and  assumed  the  character  of  an  enemy  of  the  United  States,  and 
was  not  entitled  to  a  standing:  s^"^  <^  I'ritish  subject  uiuler  the  treaty  ; 
that  the  proofs  fully  sustained  the  charges  upon  which  he  was  con- 
demned by  (General  MiitlcM-;  that  if  any  doubt  existed  upon  tln^  proofs 
HOW  before  the  (commission  as  to  the  truth  of  those  charj-es,  the  evi- 
dence before  (leneral  IJntler  and  upon  which  ho  acted  was  ("crtainly 
sulHcieiit  to  sustain  his  tindiiif?  and  to  justify  the  condemnation  jiro- 
nouiKH'd  by  him  upon  the  ]»roofs  before  him;  that  as  military  com- 
mander of  a  captured  city  within  the  enemy's  country,  then  strictly  and 
soh'ly  under  military  jnovernment,  ileneral  F.utler  was  v«'ste<l  with 
full  authority  to  administer  military  law,  either  in  person  or  through 
military  courts  and  tribunals  orjjanized  nmler  his  order;  that  the  of- 
fense of  which  he  found  Dr.  Syme  uuilty  was  a  crime  under  military 
law  of  a  lii^h  grade,  and  justifying  ihe  sentence  pronounci'd  upon  him. 

The  memorial  claimed  damages  for  Wut  arrest  and  imprisoiiment, 
$10(»,()()0;  for  the  <lrugs  and  other  property  of  the  decedent  taken  and 
appropriated  by  the  United  States,  (less  the  value  of  the  aimmnt  re- 
turned,)  and  the  rent  of  the  store,  ii<l(;(;,«L*.");  and  damages  by  the  break- 
ing up  of  the  business  of  the  decedent,  and  the  loss  of  profits  which  ho 
would  have  derived  from  the  business,  $1.50,()(M>,  besides  interest. 

The  commission  (Mr.  Commissioner  Frazer  dissenting)  made  an  award 


72 


AMEIilCAN-HRlTlSII    CLAIMS    COMMISSION'. 


1'> 


m 


in  fiivor  (►!*  the  claimants  for  $11 0,2(U).  I  am  advised  tliat  tlii.s  award 
included  notliing  tor  dama<;'es  for  imprisonnuMit,  but  was  made  solely 
in  respect  of  the  driijjfs  and  other  property  taken  and  appropriated  by 
the  United  States,  and  the  rent  of  the  drnj^-stoie  whih^  occupied  by 
them.  Mr.  Commissioner  Frazer  expressed  his  views  upon  the  case  as 
follows : 

IJisiiijj  over  tin-  military  age,  an<l  exempt  IVoni  military  duty  as  a  <lriijij;ist  also,  Dr. 
Syiiii^  took  a  commission  in  tlit!  Itritish  Kiisilicrs  and  an  xatli  of  oilic*-  lo  support  tin- 
rfl«'l  confidciacy,  and  cviiu'cd  his  liostility  liirtlier,  a.s  I  dci-m  tin-  wcijiht  of  tlif  cvi- 
dfncif  to  nIiow,  liy  riCnsinj;  tosill  jroods  to  the  I'nitcd  States  altci  Nrw  ( Mlcans  Cell  into 
I'l'dcral  possession.  Tlii»  made  liini  an  actual  enemy,  and  lie  could  havi;  no  standing 
to  proseeute  a  claim  lielbre  this  commission.  Tlu^  henedeiaries — his  wife  and  child — 
have  none,  hecausit  they  ale  Americans.  Jiis  condemnation  hy  (general  Ihitler  was 
upon  what  iippearcd  at  tliu  tinn:  to  he  satisfactory  evidence,  though  it  was  snhse- 
<|Ueutly  shown  hefore  fln»  military  commission,  organized  under  thi<  order  of  (Jeneral 
Hanks,  tliat  he  was  prohahly  innocent  of  the  chaiges  ujion  which  he  was  ariistcd.  He 
was  restored  to  liherty  as  soon  iis  an  investigation  conld  conveniently  he  had  ;  and 
wlnit  remained  unconsumcd  of  his  conhscated  goods  was  also  restored,  together  with 
the  po.ssession  of  his  huilding. 

In  so  nnicli  of  this  opinion  of  Mr.  Commissioner  Frazer  as  relates 
to  the  sutliciency  of  the  evidence  upon  which  Cleneral  IJiitler  acted  to 
snstjiin  his  lindin^i;  and  sentence,  ami  as  relates  to  the  probable  actual 
innocence  of  Dr.  8yme  as  apiu'arinj;'  before  the  commission,  I  am  advised 
that  the  majority  of  the  connnission  concurreil. 

In  the  case  of  Williatn  15.  Pumth,  No.  14.'?,  a  claim  was  made  for  8")n,0(>(» 
damages  fcuthe  alle<4ed  wron;>ful  arrest  of  the  claimant  in  the  nei<;hbor- 
hood  of  I'ort  .lacksou,  Louisiana,  and  subse(pient  imi)iisonment.  lie 
was  arr«'sted  by  United  States  soldiers  on  the  8th  Au«i;ust,  1S(»l',  taken 
to  Fint  .lacksou,  and  there  conliiied  till  the  USth  August;  then  sent  to 
Fort  IMckens,  IVnsacola  Harbor,  and  tiuMe  coullned  till  the  l.'ith  August, 
ISO.'};  then  taken  back  to  New  Orleans  and  detained  till  the  2Glh  August, 
liStKi,  when   he  was  uucoiiditioually  releasetl. 

Previous  to  his  arrest.  Dr.  IJooth,  who  resided  in  Louisiana,  two  miles 
from  the  Ibrts  and  outside  the  lines  of  military  occupation  by  the  United 
States,  had  been  on  the  reijuestof  Dr.  (iordon,  the  surgetm  of  the  forts, 
visitiiifi'  and  i)res(Mibinft'  for  the  prisoners  and  Fc<leral  soldiers  at  the  forts. 
(iren.  Neal  Dow,  thecommand«!r,  learniu<>'  ihe  fact,  had  notilied  him  that 
he  coidd  not  be  permitted  to  visit  the  Ibrts  without  taking  the  oath  of 
allegiance,  or  giving  his  parole  of  honor  not  to  ('ommunicate  information 
to  the  enemy.  Dr.  Uooth  declined  to  do  either  of  these  things.  After  his 
arrest  \w  still  continued  his  refusal  to  give  the  retpiired  parole,  and,  per- 
sisting in  his  refusal,  (leneral  Dow  ordered  his  transfer  to  Fort  I'ickcnsand 
his  detention  there.  At  this  time  Forts  Jackson  and  Saint  Philip,  lying 
on  tile  opposite  banks  of  the  Mississippi  some  one  hundred  miles  or  more 
below  the  city  of  New  Orleans,  were  occupied  by  a  United  States  force  of 
aboutsixhumlred  soldiers,  and  about  the  same  number  of  liberated  slaves, 
under  the  command  of  General  Dow.    The  garrisons  were  weak,  and  a 


^A 


AGKXT  S    KEPORT. 


73 


liir^c  ihiiiiIkm'  of  tlio  tioops  actiiiilly  tlM'io  were  piostrati'd  l)y  sickiioss. 
(Iciu'ial  Dow  iU't'iiiiMl  it  of  tlio  utmost  importiiiua'  that  a  kiiowhMl^c  of  tli(< 
weakness  of  his  {fanisou  should  he  kept  froui  theeueiuy.  The  refusal  of 
])r.  liooth  to  ii'ivci  the  re(|uiie(l  parole  rouse<l  the  suspieious  of  (leueral 
])o\v,an<l  wheniiersistediiijledtohissendin^theclaiiuantto  h'ort  rieki'us. 
During  Ins  stay  at  Fort  Pickens,  and  alter  his  retransler  thentM'  to  New 
Orleans,  he  still  peisisted  in  refusing;  to  ^ive  the  recpiired  parole,  an<l 
was  lihally  dis('liar;;ed,  after  a  conlineinent  of  nearly  tiiirU'en  months^ 
unconditionally  and  without  parole.  Lord  Lyons,  durinj;'  his  <'onfin«'- 
ment,  in  a  h'tter  to  Mv.  Coppell,  Uiitish  consid  at  X»'w  Orleans,  stat«'<l 
that  the  rcipiired  piirole  was  <leenied  not  unreasonalih;  l»y  ller  .Majesty's 
government,  after  consultinj;  thi^  law  ()nicers  of  the  (hown. 

On  the  part  of  (lie  United  States  it  was  insisted  that  the  arrest  and 
detention  of  Dr.  Uixnh  were  warranted  as  measures  of  just  nnlitaiy 
juecaution  in  rcijard  to  an  enemy  l)y  domicile  possessed  of  knowled;>e, 
the  communiciilion  of  whi('h  to  the  enemy  would  be  highly  <lan;jerous 
to  the  United  States,  ami  who,  by  his  refusal  to  .ijive  tliis  |)ropiM'  and 
reasonable  ideduc,  had,  in  the  lan;>iiaj;e  of  liord  I>yons,  entitled  the 
Unite<l  States  to  treat  him  as  a  sns[)ected  person. 

The  nuMuoiial  of  Dr.  liooth  also  includ(>d  claims  to  the  amount  of 
-^S.'5,.S0(),  besides  interest,  for  [U'operty  of  the  claimant  alle;:;-ed  to  have 
been  taken  and  appropriated  by  the  United  States. 

The  (iommission  (Mr.  (commissioner  Frazer  dissentinj;)  awarded  to 
the  claimant  the  sum  of  si' !.,!)()(),  which  award  was,  as  I  am  advised, 
wholly  in  lespect  of  property  taken,  and  included  nothing'  on  account  of 
the  arrest  and  imiirisonment. 

.lohn  McCann,  No.  17.'5,  and  Johti  Mnrta,  No.  ll>r»,  natives  of  Irelaiul 
and  <lomiciIed  in  Luzerne  County,  IVnnsylvania,  were  irrested  there — 
3IcCanu  in  September,  ISd.'J,  and  Murta  in  November,  l.S(5;{ — by  United 
States  trooi)s,  nnder  antluuity  of  a  provost-marshal  ;  were  taken  to  l"\)rt 
.Miniin  and  there  conlined,  McUann  till  ALin-h  and  Murta  till  April,  l.SJU. 

The  proofs  showed  that  at  tin*  tinu'  of  their  arrest  an  «)ry;ani/ed  con- 
spiracy existed  in  Ln/.crne  County  and  vicinity  to  resist  the  l-'ederal 
draft  for  troojts;  that  jiireat  violence  was  used  a;i;ainst  I'l'deral  otUcers  ; 
that  open  detiance  of  the  Federal  authority  was  nnule  in  public  meet- 
iufjs  of  the  minin;^- popnlation  ;  that  loyal  citizens  snstainin;;'  the  Clov- 
ernment  had  been  assassinated,  and  measures  had  been  adoi)ted  to 
ambuscade  and  massacre  l"\'deral  troops,  should  they  be  sent  there:  to 
entbrce  the  dralt ;  that  the  principal  disturbing-  element  in  this  conspi- 
racy was  the  Irish  Catholic  miners;  that  not  only  secret  associations 
were  formed,  but  public  meetinpfs  were  openly  held  for  the  avowed  pur- 
jtose  of  stoppinj;- the  mines  and  thus  8to|)i>in^-  the  war;  that  a  larj>o 
nundjer  of  persons  regarded  as  the  riuji'leaders  and  most  dangerous 
persons  in  this  movement  were  arrested,  antl  anion-;'  them  tliese  two 
claimants.    No  proof  was  made  of  tUo  complicity  of  either  of  the  claim- 


III 


11 


I 

If 


74 


AMKRICAX-nRITISII    CLAIMS   COMMISSION. 


1        1 

1        1 

1      ■   ' 

i 

i 

ants  with  tlu'  actiiul  rosistancp  to  the  draft  or  violation  of  law ;  bnt 
Miirta  was  shown  to  have  been  a  nieniher  t>f  the  or;;ani/ation  known  as 
the  *' Kni;;hts  of  the  (lohh'n  Circle,"  eieated  to  o|>iii>s('  the  <lraft  ami 
aid  the  rehellioii.  X«'itlier  of  the  elaiinaiits  w;is  «'ver  hronjiht  to  trial. 
In  the  ease  of  MeCann  an  award  was  niad(>  in  favor  of  the  elaiaiant  for 
><'>,00U,  in  wliieli  ail  the  eoaiinissioners  joined.  In  the  (;ase  of  Mnrta  an 
award  was  made  for  $1,2U(>,  Mr.  (Commissioner  Fra/er  dissenting;-. 

In  the  (-ase  of  Thomas  Uiley,  Xo.  1!)2,  the  claimant,  a  resident  of  Lu- 
zerne County,  Pennsylvania,  was  tlralted  into  the  United  States  mili- 
tary service  in  November,  lS(i;{,  was  taken  to  l*hila(lei|»hia  ami  there 
held  in  the  United  States  military  barra(tks  for  about  six  weeks,  when 
lu^  was  taken  si<'k  and  sent  to  the  hospital,  and  theie  remained  conlitu'd 
by  disease  till  the  (!th  of  April,  ISiU,  when  he  was  dischar^jji'd  by  the 
War  Department,  thron;;h  the  intervention  of  Iii)rd  Lyons,  as  bein^if  a 
subject  of  (Jreat  IJiitain,  haviuj^  received  his  pay  as  a  soldier  for  the 
time  durinj;'  which  he  was  held. 

On  the  part  of  the  L'^nited  States  It  was  contended  that  he  was  held 
simjily  in  conscqueni'e  of  his  failure  to  <'omply  witli  thi^  re;;ulations  of 
the  provost-marshal's  de[)artment  in  rej-ard  to  showin;^  lU'oof  of  alien- 
aji'e.  Tin'  v\\si\  showed,  however,  that  the  proofs  of  his  aliena'^e  w«'re 
submitted  by  Lord  Lyons  to  Mr.  Sewai''  in  November,  ISli:!,  within  a 
few  days  after  his  arrest,  and  his  dischai^^e  was  not  ordered  till  about 
four  months  after. 

The  eommissie>n  unanimously  awarded  him  the  sum  of  -sSDO. 

Kdward  MeCabe,  Xo,  1!)7,  was  drafted  into  the  military  service  of  the 
United  States  in  (^)iu>ens  County,  Xew  York,  in  Se[itember,  IStJ.'J.  lie 
api)eared  belbre  the  enrollinj;-board  and  claimed  exemption  ;  was  in- 
formed of  the  re;;iilation  jn-i'scribin;;  the  method  of  makiiij;'  the  neces- 
sary proof;  was  ;;iven  time  to  tile  it,  but  failinj;:  to  do  so  was  arrested  by 
order  of  the  provost-marshal  and  detained  for  two  days,  when,  having 
furnished  the  m'i;essary  proof,  he  was  discharged. 

The  commissiou  unanimously  disallowed  his  claini. 

Patrick  J.  (ViNLdligan,  Xo.  -170,  was  drafted  in  Cayuga  County,  Xew 
York,  in  0(;tober,  ISi!.').  IIo  appeared  before  the  board  of  eni()llment 
and  claiauMl  exemption  as  a  Jiritish  subject,  but  failed  to  comply  with 
the  regulations  tor  the  proof  of  alienage,  lie  was  detained  for  twenty- 
four  hours,  and  on  physi(!al  examination  by  the  surgeon  was  found  unlit 
i'or  military  service  and  was  dischargeil.  For  these  grievances  ho 
claimed  the  sum  of  8'S()0,0t)(),  besides  interest. 

Ills  claim  was  nnanimonsly  disallowed. 

In  the  ease  of  Mary  Sophia  Hill,  No.  108,  the  claimant,  a  native  of 
Ireland,  was  domiciled  during  the  rebellion  and  for  niany  years  before 
in  New  Orleans.    At  the  time  of  the  capture  of  X^ew  Orleans  by  the 


AGKNTS    KKPOUT, 


ii) 


ImmIimuI  ('(»r<<'s  ill  1802.  slio  Wiiw  in  attriHliinco  on  tlio  confcdointo  hospi- 


tals ill  Viryiiiiii, 


but  shortly  after  n'tiiiiicd  to  New  Oiii'aiis  iiiuhT  a 


])rop('i' pasH.     Ill  l.SO.'t  sJM' wfiit  to  In'hiinl,  and   rctunuMl   to   New  ()r- 

h'aiis,  taiviiij;-  tl nth  of  neutrality  on  hiiKlin^-.     She  a^alii   left   New 

Oih  ins  ill  iln'  fall  of  ISO.',  niider  a  pass  and  wont  to  Vir^iiiiia,  where 
she  remained  for  liv«'  months  "reinleriii;;  assistaneein  the  hospitals  and 
to  prisoners  hy  means  of  tla;;s  of  trnee.''  In  lS(>i  she  returned  to  New 
Orleans,  and  havinj^iio  pass  was  arrested  and  iletained  in  prison  for 
two  days;  wlu  ii,  haviiiji;  satistied  the  provost-marshal  that  slie  was  a 
IJritisli  siihjeet,  sIk!  was  released  on  bail.  After  her  disehar^re  and 
wliih'  sick  she  alle;;ed  that  she  was  called  npon  by  a  woman  who  yavo 
the  name  of  Hllen  Williams,  and  <;ave  her  a  not«!  pmportin;;-  to  be  Irom 
(Jen.  Tom  Taylor,  an  olliccr  of  the  confederate  service  commaiidiiiH'  a 
post  witliiii  the  c(»iifeilcrate  lines  in  liOiiisiana.  Tliis  wctmaii  infoinie«l 
claimant  that  she  was  ^-oiii;;  throiiyh  the  lines  into  the  confederacy  if 
she  conld  j-et  a  pass  trom  (leneral  Jhinks,  and  olferetl  to  take  letters 
from  the  claimant.  Claimant  jjave  to  her  a  letter  to  (ieiieral  Taylor, 
a<'kiiowIed<;iiij;-  the  receipt  of  his  letter,  and  sa.yin;;-  to  him,  "  Commnni- 
cate  and  state  what  yon  r«Mpiire,  and  I  will  do  all  in  my  i)ower;  1  will 
be  here  nntil  the  eml  of  duly."  She  also  <;;ave  to  her  a  letter  addressed 
to  her  brother,  a  soldier  in  the  confedeiule  service  in  Vir;;inia,  in  which 
she  deiionnci'd  tin*  "  Vanke«'s:"  and  said,  amon^'  other  thinj^s,  "  We  have 
acconnts  of  the  battles  in  Iiichmond,  but  so  hashed  ii|)  to  snit  nerthern 
])alates  yon  can  make  neither  head  nor  tail  of  the  alfair;  but  thion;;h 
my  si»ectacles  J  see  (leneral  (irant  ami  his  well-whipped  army  with 
their  facu's  toward  Washington  and  their  backs  to  the  hated  city  of 
Iiichmond,  except  those  who  take  their  summer  residence  at  Lil)bv. 
Tell  the  boys  IJanks  has  nnule  a  splendid  commissary  to  Dick  Tayhyr's 
army^and  they  were  so  unj^ratefiil  as  also  to  whip  him,  and  very  badly." 
She  also  <;ave  this  woman  another  letter  of  similar  cliaiacter,  ad- 
dressed to  Airs,  (liaham,  a  ])erson  livin;;"  in  3Ionl,i;()mery,  Alabama, 
within  the  lines  of  the  ctmfederacy. 

These  letters  were  delivered  on  the  LM)tli  Alay,  ISOI;  and  within  a 
few  days  after  she  was  arrested  by  an  olllcer  of  tln^  iirovostniarshars 
bureau,  committed  to  pris<m,  and  there  (U'tained  nntil  .Inly,  when  she 
was  brouj;ht  before  a  military  commission  and  tried  on  the  cliarj;e  of 
"holdin<>-  correspondence  with  and  ;ii\  in*;'  intellijicnce  to  the  enemy,  in 
violation  of  the  Fifty-seventh  Arti(!le  of  War,"tlu'speci(ications  beiny'  the 
written  letteis  above  named.  She  was  found  j'uilty  of  the  charge  except 
thewords  "and  jiivinj;intelligenceto ;''  and  was  sentenced  to  ''beconliiKMl 
duriii;;  the  war,  at  such  place  as  the  comniandinj'-  general  may  direct." 
The  proceedinjjs  and  lindings  of  the  commission  were  approved  by 
Major  (leneral  Ilnrlbut,  then  in  eonnnand;  but  the  sentence  was  so 
modilied  as  to  direct  the  claimant  to  bo  sent  into  the  so  called  confed- 
eracy as  an  enemy;  and  the  provost-marshal-general  was  charged  with 
the  execution  of  the  order. 


;; 


76 


AMKRICAX-MRITISII    CLAIMS    COMMISSION'. 


At  tlu'  fiinc  of  her  triul  New  Oilcmis  was  still  iimlci'  iiiilitiiry  yovorii- 
iiu'iit,  but  the  I'liilrd  States  ilistiict  court  had  hccn  rcor^'aiii/.cil  iiiuhT 
fTu<l;;c  Diircll,  and  was  in  operation  in  that  eity.  No  Htate  trilmnals 
WiHV,  in  o|i(M'ation,  nor  any  local  trihnnals,  except  under  authority  and 
]><'i'niission  of  the  niilitaiy  eouiinaiKler. 

On  the  part  «>!'  tlu^  claimant  it  was  <;ontended,  iirst,  that  the  claimant 
was  not  amenahU'  to  military  Juiisdiction,  but  must  be  tried,  if  at  all, 
bet'ori'  tlio  civil  trii>uiials;  second,  that  if  amenabh^  to  military  juiisdic- 
tion, tlu^  commission  betbrt^  which  she  was  tried  was  not  a  competent 
tribunal;  that  by  the  FiCty-Seventh  Article  of  War  (2  Stat,  at  L.,;5(»(;)  the 
only  military  triimnal  haviiij;'  co<ifni/ance  of  such  an  ollence  was  a  court- 
martial,  a  tril)unal  distiu<;t  and  di  lie  rent  from  a  military  commission  ; 
third,  that  tin  liiidin;;  of  the  nulitary  (commission  that  slie  was;;uilty  of 
the  (;haiy<M'.\cept  the  words  '' and  ^-ivinj;-  intt'lli;j;ence  to,"  was  in  fact 
an  accpiittal,  corresponden(!e  with  the  (Miemy  without  ^iivinj;' him  intelli- 
}4iMic«>  not  bein;;'  a  military  olVence  or  a  violation  of  the  article  above 
referred  to ;  fourth,  that  the  commandin;^  onic(>r  hatl  no  authority  to 
chanj;*^  the  pnnishnu'Ut  directed  by  the  sentcMict;  of  the  court,  and  sub- 
Htitute  banishment  into  the  confederacy  for  imi>risonnu'nt  ;  that  this 
substitution  was  not  with  the  consent  of  the  claimant,  and  was  not  a 
uiitij;ation  of  punishnu'iit ;  fifth,  that  the  letters  were  not  :u  fact  sent 
into  the  c()id'e(leracy,  but  were  delivered  by  the  messen^^ei'  to  the  United 
Stales  military  authorities  in  New  Orleans,  and  that  the  evidence  tended 
to  prove  that  the  pretemled  nu'ssenjier  to  whom  they  were  delivered 
WHS  in  fa(!t  a  spy  and  at^'cnt  of  the  United  States. 

On  the  part  of  the  United  States  it  was  contended  that  the  otVence 
char;;ed  a.iiaiust  theclainmnt  was  a  nulitary  olieiu'e  purely,  not  cogniza- 
ble by  the  civil  tribunals;  that  the  claimant,  domiciled  in  a  city  within 
the  enemy's  cmintry  and  recently  ca[>ture«l  from  the  enemy,  held  by 
uiilitary  power  only,  and  jjoverned  oidy  by  military  authority,  was 
anuMiable  to  military  jurisdiction  ;  that  the  tribunal  belbre  whicih  she 
was  tried  was  a  competent  military  tribunal,  or^jfani/ed  under  sutlicient 
military  authority,  and  haviuj;'  jurisdiction  both  of  the  sul>je«tt-mattcr 
and  of  the  person  of  the  clainuint ;  that  irrespective  of  the  i)rot;eedin<;s, 
tindin<4',  or  sentence  of  the  conunission,  the  coiumandinj;  jjeneral  had 
ull  authority  to  expel  the  claimant  froai  the  <aty  and  seutl  her  within 
the  enemy's  lines,  on  satisfactory  evidence  of  her  active  sympathy  with 
the  rebellion,  and  of  her  attempt  nunely  to  communicate  with  the  enemy, 
and  that  the  modilication  and  nutij;;atiou  by  the  co!nmandin;;";jfeneral  of 
the  punishment  decreed  by  the  military  tribunal  was  one  of  lawful 
power,  and  was  not  a  matter  of  which  the  claimant  could  rij^htfully 
complain. 

The  conunission  ^ave  an  award  in  favor  of  the  claimant  for  $1,500, 
Mr.  Comnnssioner  Frazer  dissentin/j:.  This  clainuint  was  the  same  per- 
son whose  orif>inal  memorial  (No.  8)  was  dismissetl  by  the  comnussion 
ou  account  of  its  improper  and  indecorous  lauijuage. 


ACJ i:\T.S    I.M'.POKT. 


7T 


Till-  v:\sv  of  Colin  .T.  Nicolsoij,  No.  'J.V5,  may  properly  bi'  reported   in 
(MHiiM'i'tioii  with  tli.it  of  .MiH«;  Hill.     Nictolsoii,  ii  native  ol'  Seotland,  Ir.ul 
beeiMlomii'iled  in   New   Orleans  since  IH.-.ii.     lie  was  arrested  in  that 
city  on  the   l."»th  of  Sept«'nil>er,  isdl ;  was  detained   in  prison  till   tin* 
L'L'd  of  Noveniher.  ISCl,  when   he   was  hron;;hl    before  a  ;;('neral  eonrl- 
iiiartial   in   that   city  and   tried  on  the  ehar^^es,  llrst,  of   relieving,'  tho 
enemy  with  moiwy,  hy  investing  nioiiey  in  honds  of  the  Ttmlederate 
States  and  transmittin;,'  the  same  to  Hnyland  for  sale  there  ;  and,  sec 
mid,  of  holdin}--  forrespDiidenee  with  the  enemy  by  h'tters  passin;^  be,- 
tweejj  himself  and  one  Violett,  an  enemy  of  the  United  Stat(  s,  resident 
at   Mobile;  antl   hi  and   by  siu'h  eorrespondenee  devisiii;;-   means  tor 
brinj,inj;  cotton  ont  of  the  (•(.•••••deracy,  and  disposin;-  of  it  lor  the  Joint 
bciieht  of  himself  and  Violett,  and  for  nejiotiatin;-  and  sellin;;'  bonds  of 
1  he  Confederate  States.     He  was  convicted  on  both  char;,'«'s,  ami  was 
sentenced  to  imprisonment  at  Fort  Jellersoii,  Kla.,  or  at  smh  other  place 
as  tlie  coiinnandin;;  j^eneral  sliould  direct,  for  live  years.     Tiie  senti'nco 
was  approved  bydeneral  ('aid»y,  commanding;,  and  the  clainmnt  wa^^ 
committed  to  con  tbiement  at  FortJellcrson,  where  he  remained  for  about 
nine  mcmths,  when  he  was  pardoned  by  the  President  of  the  United 
States. 

The  qnestions  involved  and  the  doctrines  maintaim-d  by  the  respect- 
ive counsel  in  the  (;,ise  of  AUss  Uiil  wen;  ur;ied  upon  the  c((mmissi(m  in 
tliis  case.     The  connsid   for   the  (-lainmnt  turther  contemh'd  that  the 
dealinj;'  in  bonds  (»f  thi'  enemy  in  Now  Orleans    and  transmitting-  them 
thence  to  Hnjiland   for  sale  was  not  a  '■  relievin;;'  of  the  enemy  with 
money,''  or  in  any  manner  a  fiivinj;'  of  aitl  to  the  enemy,  and  that  tin? 
correspondence  of  the  (dainmnt  with  \'ioletL  involve«l  no  ai«l  <ti- comfort 
to  the  (Miemy,  j;ave  no  information  to  them,  and  constituted  no  military 
otk'iKui.     lie  cited  the  first  Jirticle  of  the  treaty  between  the  United 
States  and  (Ireat  Ibitain  of  ."Id  duly,  lS<>r>,  (8  Stat,  at  L. ;)  also  :\Iilli- 
{jan's  case,  (4  Wall.,  2:)  Ki-an's  case,  (."»  Blatchford,  C.  C.  K.,  .•JliO;)  the 
Venus,  (L'  Wall.,  L».V.» ;)  the  Circassian,  (<V.,  ITiS;)  the  Oiuichita  cotton, 
((»  id.,'>'M  ;)  Copp«'ll  vs.  llall,  (7   /</.,  r)42;)  Thorington   vs.  Smith,  (8  /</., 
12;)  the  (irapeshot  (!)  jV/.,  12!>.) 

The  memorial  clainu-d  8~>00,()l)0  damajyc?.  The  claim  was  disallowed 
by  the  commission,  Mr.  Commissioner  (luruey  dissentinj;. 

In  the  case  of  James  McVey,  No.  20S,  the  clainmnt  alleged  that  he 
was  twice  arrested.  It  appeared  that  the  first  arrest  was  within  the 
enemy's  lines,  when  he  was  detained  for  some  four  weeks  to  prevent  his 
C'ommuincation  with  the  enemy.  The  second  time  he  was  arrested  while 
in  the  act  of  carrying  goods  across  the  lines  from  the  enemy's  <;ountry, 
and  was  held  in  confinement  several  weeks.  Ills  claim  was  unanimously 
disallowed. 


f 
1 


)■ 


il: 


if 


Substantially  similar  to  this  last  case,  in  regard  to  the  character  of 
the  arrest,  were  the  cases  of  Isaac  Miluer,  JTo.  207,  iu  which  an  award 


78 


ami;kic.».\-!<hitisii  claims  commismox. 


was  iijiiflf  ill  Ciivor  of  the  cliumant  for  jtropcrty,  Init  iiicliidin^jj  tiotliiii'; 
ior  tlu>  allt'ji('<l  an<'.s(;  vl'  Samiu'l  Sii!i|»s(Hi,  No.  iMT.  wliu-li  was  miaiii- 
iintiisly  ilisaliowctl  ;  olioliii  ("ait'W,  No.  'Jl'l,  wliicli  was  disallowcMi,  Mr. 
Coimni  isioiHT  (ImiH'.v  (lisst'iitiii,L; :  of  llciii-y  F.  Wliiti',  ^"o.  l',;.".,  wliicli 
was  iiiiaiiiiiioiisly  (lis.dluwrd  ;  ami  of  .lohii  (laic,  No.  L'lT,  in  wliicli  tlwro 
was  an  awa"'  foe  |iio|K'ity,  Inii  iiulmliiig  iiolliiii^  on  arcount  of  tlic 
arrest  or  iiiiinisomiicut. 

In  the  case  of  Josi'pli  \V,  Scott.  No,  J-*;:,  ilic  claiiiiaiit,  domiciled  at 
•lacUsoiivilic.  l-'la.,  was  tlicro  ancstcd  l\v  order  of  llie  conimaiidii!;;' oOi 
eer  in  No\-eiiilter,  iSlil,  on  I  lie  cliariic  of  di>loyalty.  and  ilefaiiicd  in  eon- 
tiiieiiieiit  for  sonic  tliree  iiioatlis.  .iacksonvillc  was  an  inland  town,  on 
;lic  Saiiu  .loliii  s  lfi\er,  wliicli  came  into  tlie  hands  of  the  I'niled  States 
lor<'cs  ill  I'clti  iiaiy.  i>i(U,  ai!<l  hdin  that  time  In  the  close  of  the  wai  was 
ociMipied  l>y  them:  luit  the  rcitcl  forces,  m<>st  oi  the  time,  were  within 
its  immeilialc  vicinity. 

On  the  part  of  the  I'liit'.'.  States  it  was  insisted  that  the  military 
x'o.iimander  was  necessarily  investeil  with  ahs(>lii!e  power  lor  the  control 
<»fthecity:  and  that  it  was  his  duty  to  take  such  measures  as  should 
)u-eveiit  inliahitaiits  di.>!oyally  disposed  from  coinmunieatiii;;  w  ith  the 
enemy;  and  that  iiolhia;^  in  the  case  i>l  .Mr.  Scott  showed  an  aliu.se  of 
this  aiithoiity. 

All  award  was  made  in  favor  of  the  claimant  in  respect  of  prop, 
erty  taken  lis  the  United  Stales  li'ooi»s,  but  it  jiielmh-d  iiolliiny;  Uh' 
imprisonment. 

Ill  il'e  <'ase  of  .lames  T.  >hinnie.  No.  LM."».  claimant  had  emharked  at 
Mew  ()rh«aiis  in  A.ii;;ust,  Istil,  on  lioanl  a  >teamer  lor  .Matamoras, 
.Mexi(!o,  with  the  machinery  for  ereetiiijj;  a  saw-mill  at  tliat  phu-e.  The 
steamer  was  st(tpped  at  I'ort  .Jaeksoii  on  flie  eliar;;«' of  haviii;j  eiuitra- 
l>aml  ;;oo'ls  ;  i<  hoard  intended  iiu'  Texas,  l»roii;4ht  back  to  New  Or- 
leans, and  the  claimant  was  there  detained  i>y  the  military  authorities 
lor  two  days  Oil  board  the  steaimi,  and  for  twch  e  hours  i'l  the  military 
rrisoii  at  that  city.  It  .ippeared  that,  while  he  was  in  <-oiiliii('ment,  lli^ 
trunk  onboard  the  sii-aue'r  was  broken  open,  either  by  the  )u'o\ost- 
t:;iiartl  or  in  coDM'oifiice  of  their  iu';;li}.jenee,  aiul  moiu'y,  wcariii;;  ap- 
parel, and  other  Ui  iiele.s  were  .stolen  fr«un  it.  On  eomplaiiil  made  to 
MaJor-(icneral  ("aiiby,  in  eotniuaitd  of  the  city,  an  oidei' was  mad<'  by 
liim  declai  in;;  these  ( raiisaclioiis,  if  t  rue. '  j  be  i-xeeedinyly  disci-editable 
to  the  };uar.ls,  and  direct in,n'  the  provoMt  inarsliel  to  take  measiires  to 
bri'ijtj the  otleiiders  to  justice.  .\ii  invest iy;at ion  was  ordered,  but  flip, 
olVetiders  did  not  appear  to  have  be«'U  discovered,  ami  no  rei»aratioii  was 
made  to  the  claimant. 

On  the  pari  (if  the  I'liited  Slates  it  was  ur«red  that  the  arrest  arid  de- 
tention wcie  lawful  ami  reasonable  lor  the  purpose  of  iiupiiry  as  to  the 
v'.iarat'ler  of  the  ve.ssel,  and  that  the  I'nited  States  were  not  liable  to 
retlaiiialioii  for  tlie  theft  "<f  the  elainiitnt's  property. 


A(ir.NTS    KKI'ORT. 


79 


An  :nv;iiil  \v;i.s  iiiiMh'  in  favor  of  the  clainiaiit  for  ^l.riK),  in  wliiih  all 
tlu'  coininissioniTs  joint'd. 

in  tin'  case  (»f  Snsan  !».  .lackson,  Xo.  '_'."»,  (he  clain.ant,  in  Itclialf  of 
ImtscU  and  her  four  niinnr  cliildrcr,  idaiincd  tlania^^cs  foe  ilic  arrest  of 
.lolin  .iackstiti,  t Itf  linshand  of  in>  claimant,  at  Knowillc,  Tcnii..  and 
Ills  hanislnncnt  wiiliin  the  rnrniy's  lint-s,  w  itii  his  fainiiv ,  in  .Iannar\ , 
l.stil.  It  appt'an'  I  ll'at  Dr.  -laiUson.  the  lin>l»;!iiid.  had  hcen  a  resident 
of  Kin»\\ilh'  for  sinne  veais  and  nnlil  alter  tin- ItreaUinj;  <Mit  of  tin' war  ; 
that  lie  had  sent  his  fa'  iily  to  Mnj,dand  in  An;:ns|.  l.-tU,  :iiid  himself 
lolhi\ve<l  them  in  .Iniie.  iSdi';  that  he  returned  to  New  York  ;i  Oetohel, 
IsilL',  and  in  .laimars.  isii',,  haviii},'-  obtained  the  iMupcr  pei  niissioii,  I'e 
tnined  to  Knowiiie  Itn-  tiie  alh'jie<l  ]inr|Mise  of  dis|)o,siii;L;  »>•  Ids  piopeily 
there.  Insiead  ol  disposing;  of  his  propeilv  he  remained  al  Kiiowille, 
atnl  there  eiii«-red  into  trade.  !»'  I:  lietoic  his  departure  lor  llii^^land 
and  alter  his  return,  in  ISii.;,  he  had  lieen  an  open  and  aei  i\  e  sy m pa t  hi /.er 
with  the  rebellion,  deiioiii'ciiiii  the  Cnited  Stales  ( io\  ernineiit  and  en- 
eonra;:iii;4  ami  aiding  the  rebels  (low  n  to  tin' surrender  of  Kiiowille  to 
the  riijted  States  forces  in  September,  iSll;;.  I')\  idence  was  also  ;:;iveii 
on  fl'.e  pari  of  iIm-  I'nited  States  showin;.(  condnct  e\iiieiii;;  a  hostile 
s|(iril  towanlthe  I'liited  Stales  (io\  eminent.  <  )ii  the  JIMli  .laniiaiy, 
]S(U.  the  follow  in;;'  notice  was  addressed  to  him  byCeiieial  l"o>ter's 
]novost  marshal  : 

Owiiijr  In  viiiir  |iii-<islfiit  fli'.liiviilty  t"  flu-  (J(i\  cnimfiit  nC  tiic  I'liilnl  SihIi-h,  it  |i;ik 

IhmMI  ill  ri'.li  iI  Id  simmI  ynll  mill  Villi  I    rillllli.x    Niilll  ll  III'  I  III'  i  rili'l.li  lillr.i.      ^  nil   Will,  llliTC- 
I'ni'i-.  Ill-  |irr|iaii'il  til  .stall  nil  Irrciv  in*;;  llll'tlirl    Imliri-, 

The  liuther  notice  was  served  on  the  .lOth  dannary.  reipniin;;"  him  to 
lie  reads  to  depait  on  the  .'hi  l''ebrnary,  on  which  day  .laci^son  ai-d  his 
family  were  s<'nt  thronnh  the  rebel  lines  under  a  ila;;  ot  tince. 

An  awaid  was  made  in  faviU'  of  the  chiimant  in  respeci  of  propi-rty 
«)f  her  own  appropriated  to  the  nsiMif  the  ('iiited  States,  but  iiiclndin;^ 
mtthiii;;  by  reason  (»f  the  arrest  uiid  baidshinent  complained  of. 

-loseph  .M.  I'.  Nolan,  No.  1*7'J,  was  anested  by  the  military  jiroNost- 
inarshal  at  Saint  Lonis.  Mo.,  in  October,  IS(H,  on  the  (•liar;,''e  of  disloy- 
alty to  the  Iniled  S'ales.  and  of  havin},'  written  a  h'tter  to  an  alb'^fcd 
eiiem>  of  the  I  nited  States  in  Canada,  |i;ivinn  information  as  to  mili- 
ta:y  inincmenis.  lie  was  detained  in  pri.son  at  Saint  Konis  till  .hine, 
1S(»-*.  then  I'liiisferred  to  the  militaiy  prison  at  .Mtoii,  111.,  and  theie 
det.uned  till  .\n;,nist,  l.st;.>,  when  he  was  linally  dischar;;ed.  Ilisi  lease 
was  olVered  him  in  December,  istil,  and  on  oiu*  or  tw(»  other  o«'casions, 
on  Iii.s  ^Mvin;;  his  parole  to  do  lu)  act  nnlriendly  to  the  Cnited  States. 
This  piirole  he  refused  to  n'wr.  (ireat  and  nniieeessary  hanlsliips  in 
eonnec'lion  with  his  «'i)iillnetnent  were  alle;;ed  on  the^  part  of  theciaiui- 
ant ;  and  the  proof  conclusively  showed  that  the  prison  in  which  he  was 
conliiu'd  at  Alton  \\.\n  wholly  unlit  tu  its  ai»i(oiiitinenl.s  ami  sanitary 


m 


80 


AMKUICAN-HKITISH    CLAIMS    C'OMMISSIOX. 


cDiiditioii  tor  tlic  conliiioiiKMit  of  prisoiiors.  cspcciiiHy  tor  llic  liir;;t'  iimii- 
bcr  there  coiiHimmI  ;  iiiid  that  at  times  the  treatment  ol  the  prisoners, 
ineludin;;'  tlie  ehiimant,  was  harsh  and  cruel. 

An  iiward  was  made  in  favor  ot"  the  claimant  for  ><S,(;oi),  all  tho  <'om- 
mission  joinin;;.  I  am  advis«>d  tliat  the  majority  of  the  commission,  at 
least,  held  tlie  original  arrest  of  the  claimant  and  his  reasonable  deten- 
tion jiisiilied  :  hat  that  his  Ion;;'  conlinement  and  improper  treatment 
dnrinj;  it  were  not  Jnst  ilied. 

Tn  the  case  of  .Alary  Xolan,  No.  L'7.'»,  the  clainnuit  alleu:e<l  that  she  was 
arrested  at  Saint  Louis  l»v  a  «leteetive  in  the  emi)h)y  ot  the  I  nited  .Stat«'.s 
anthoiities  in  September,  IStil;  taken  before  the  pioxost marshal  at 
Saint  l.onis,  and  eotnmitted  by  him  ti>  the  Chestnnt  sticet  piison,  where 
she  was  detained  for  an  entiicday;  and  that  she  was  theic  subjected 
to  im|>roper  treatment.  She  daimeil  dama.u'es  •i'lO,)*!*!*.  The  evidence 
jn  her  casi^  .NJiowed  that  sue  was  l>ronyht  bef(»re  tlie  pi'ovosl  niarshal,, 
apparently  npon  a  snlipu'iia,  to  testify  in  a  case  before  iiim  ;  that 
she  refused  to  testify,  ami  dclied  and  insnlted  the  ollicer,  who  committed 
her  to  the  city  prison,  wheie  she  was  detained  foi-  nine  or  ten  hoars. 
Her  alle^Mtions  of  impr«»pei'  treatnuMit  were  not  sustained.  The  com. 
ndssiiui  unanimously  disallowed  her  claim. 

In  the  case  of  .btlni  I'.  I'arr,  No.  L'S.~»,  the  claimant,  a  resident  of  Nash 
ville,  Tenn.,  tiicn  in  possession  of  the  rebel  forces,  passed  thrcMiuh  the 
lines  into  Indiana,  and  thence  to  liullalo,  N.  V.,  in  Ortoiter,  isiil.  He 
went  thence  to  New  Voil:  City,  where  he  boui^ht  some  clothin^i",  shoes, 
medicines,  and  olhei'  ;;oods,  ami  ret  ur  net  I  thence  to  liullalo,  u  here  he  wa.s 
arrest  CI  1  iui  mediately  on  his  arrival,  on  the  LMMh  of  Octidter  ;  he  was  taken 
to  I'ort  l-afa\elle  in  New  York  Ilaibor,  there  conliiu'd  for  about  four 
m(»nths,  and  was  linally  discharj^ed  in   I-'ebruary,  isdU,  without  a  trial. 

.\n  award  was  made  in  his  favor  Utv  •'^l,SO(>,  in  which  all  the  commis- 
sioners Joined.  I  am  adxiscd  that  the  awanl  proceeded  on  the  ;,Mound 
that  thou,L:h  his  ori;;inal  arrest  and  reasonable  detention  were  lawfid, 
Ills  detentnm  for  four  months  without  trial  was  held  not  Justitied. 

In  tin'  case  of  IJichard  Ilall,  No.  .'US,  tin-  claitnaut  was  arrested  in 
Maryland,  on  the  litli  of  .March,  ISdt;  was  brou;;ht  belbre  a  military 
commission  on  tlu'  <'har;;(^  of  having  uidawfnily  passed  from  the  loyal 
States  thr((ii;;h  th(>  Federal  and  coid'ederate  military  litu's  into  the  State 
«»f  \'ir;4inia,  ami  there  held  ille^^al  intcrcourst'  with  the  I'lUMules  of  the 
liiiiled  Sta.es,  ami  then  returned  throuj,di  Ihelini's  in  ihesanu'  manner. 
The  military  commissicm  found  him  guilty  (d'  the  oiVem-e  char<:ed,  and 
sentenced  him  to  imprisonment  in  Fort  M(dienry,  Maryland,  tor  the  term 
o\'  tour  mold  lis,  and  to  pay  a  line  ot  !^(i,(KM>,  and  to  be  imprisoned  until 
tiie  tine  should  be  paid.  lie  wa.s  accordin^dy  imprisoned  for  the  four 
months,  and  for  twenty  days  thereafter,  when  lie  paid  the  i^tJ, (HH)  and 
was  ndeased. 


AGKN'T  8    KKPOKT. 


81 


Oil  tlio  piirt  of  tlic  Haiiuiiiit  it  was  all(>;,'iMl  that  liis  visit  to  Virjiiiiiiii 
was  witlioiit  itnlawfiil  intent  ami  for  iuni»ct'nt  and  social  |iiii|>ost'S,  Tliis 
ali<';^atitin  was  answcn-d  on  tlu'  part  of  tin-  Cnitcd  States  l»y  proof  tliat, 
tln' claimant  took  orders  from  tlie  confetliTate  militaiy  antiioiities  at 
Ivielimond  fur  military  snjjplies,  wliicli  lie  iiiidertoidv  to  piireliasi^  for 
tlieiii,  and  that  he  returned  thron>,di  the  lines  witii  the  purpose  of  exe- 
(Mitiii;;  such  orders.  The  eoiiiisel  for  the  claimant  elai'ned  that  the  mili- 
tary eommissidti  was  without  Jiirisdi(!tinii,  eitiiijjj  the  <rase  of  .Milli;;;!!!, 
(t  Wall.,!'.)  The  eiiiinsci  (»f  the  Tiiited  States  claimed  that  the  olVeiuie 
was  purely  a  military  one  and  coj;iii/„il>le  by  the  military  trilumals  under 
the  .\rticles  of  War. 

The  eomaiissiiui  (Mr.  Coaunissioiier  Fra/.er  disseiitiiij;)  mach'  an  award 
in  favor  of  the  elaimaiit  for>(J,!>^t.  I  am  advised  that  this  amount  was 
made  up  of  the  sum  of  *"i,(Htt>,  part  of  the  line  of  .*<i;,(MH>  imposed, 
wiiich  the  commission  deemed  e\ce>isive,  reduced  from  I'nited  Slates 
<Mirrency  in  which  it  was  p.iiil  to  j;old,  ainl  iiileri'st  addeil  to  make  up 
the  amount  of  the  award. 

in  the  case  of  Mewi'llyii  (^rowthcr,  Xo.  ">!L'.  the  claimant  was  arrested 
in  llaltimore  in  .Inly.  1S(»?,  taken  before  ('iiltmd  l''isii.  then  provost  mar- 
shal there,  and  detained  in  conlineiiieiit  a4  the  (lilmore  Hous(>  ftn  about 
ei;;lit  hours.  The  arrest  ;.'rew  (Uit  of  a  ipiarrel  between  theclaimant  ami 
two  ofhei  persons  at  a  IimJcI  ii  Baltimore,  of  which  complaint  was  mado 
to  ("((hmcl  Fish,  and  the  claimant  was  char;;'!'!!  with  usin.i;-  seditious  and 
disloyal  laiiijua^e.  lie  alle,';'ed  thut  ('oloiiel  !'"'ish,  on  the  ariMi;iiimeiit  of 
theclaimant  lu'lbre  him,  iisid  lan;;;iia'4e  aluisively  and  indecently  vio- 
Init  towaid  him  ami  toward  his  country  and  (J  leen.  lie  (rlaimed  d.im- 
a;;es  !i(ll>,(>i)0,  and  the  commission  unanimously  awarded  him  the  sum  <d' 


i 


^ 


In  the  case  of  .lolm  M.  Vernon,  Xt).  .'{(»l,  the  claimant  al]e,";cd  that  hc^ 
had  always  bi'cii  «lomiciled  in  I'i  i;i;'laiid,  the  country  of  his  natisify.  It 
ap|»eareil.  however,  that  he  had  resided  in  the  Tiiited  Slates  most  of 
the  time  since  isp.l,  and  had  l»een  t here  jMiu't'-Tcd  in  trade,  lie  was  in 
Muropeat  the  iMcakiny  out  of  the  war,  but  ret ii rued  to  the  I'nited  States 
in  .liine,  lSi|,aud  tliencM'  pass'il  into  tiic  coafe  icr.icy,  rem  lining;  there, 
with  the  exiu'ption  of  a  temporary  absence  in  the  latter  part  of  ISiJl, 
till  January,   ISd.i. 

lie  alleged  tliat  he  had  always  maintained  his  neiiti'ality  between  tho 
rnited  .Si  ucsaiid  t  he  (!on  federate  j^' )  vera  men  t  :  tli  at  in  .Ianuar.\ ,  Isii.JJio 
sailed  from  the  port  of  ('liiirk's'oii  in  the  steamer  lluntr«'ss,  owned  Ity  him- 
self and  laden  with  cctton,  principally  owimmI  l>y  Iiiiiisell,  for  Nassau.  N.  P.; 
succej'ded  in  p.i.ssiii;;  out  throii^ih  the  blockade,  but  on  the  day  alter  hi.s 
depart  UK',  and  upon  the  \\\>.',\i  seas  between  Charleston  and  Nassau,  tho 
st«-amer  took  lire  .m  I  was  destroyed,  the  claimant  with  the  master  ami 
vrvw  CSC  .'tin-r  in  two  shii»*s  boiitw.  These  boats  were  puked  up  by  a 
G    II 


i!?' 


[1 


82 


AMKlilCAN-ItlJlTISII    CLAIMS    COMMISSIOX. 


Uiiitci!  States  \v;irv('s-cl  mi  Dip  occmm,  on  (lie  IStli  .Tanniiry,  nnd  tlic 
('I;iiiii;int  was  caiiii'd  to  Hilton  lloail,  S.  (.'.,  IIhmc  transicnrd  to  aii<  tlici 
vt'sscl,  canit'd  to  New  Vuik,  examined  het'oie  the  Cnited  States  niarsliid 
there,  and  eoniinitted  to  l"'urt  Lalayette,  in  New  Voii;  Harbor,  in  which 
foit, andal'terwai'dsin  I-'oit  Warren.  IJoston  Ilarhoi', Im»  was  kept  eonlined 
till  OclolnT,  lS(ir>,  when  he  was  released  upon  his  written  pled;>e  that  he 
would  ''sail  tVoni  iSoston,  .Mass.,  liy  the  eailiest  opportunity,  and  h'a'.e 
the  l/'nited  States  of  America,  not  to  return  without  the  special  pernus- 
sion  of  the  I'resident  there(d." 

Jle  alle.c;ed  lar;;'e  losses  resultiuj;'  fi'om  his  imprisonment,  by  the  waste 
and  (h'strueti(»n  of  his  pro|ierty  in  the  Si)utheni  States  durin;^'  his  im- 
prisonment, iiiid  in  eoirseqiii'iiee  of  his  hisini'ss  hi'inydepriveil  of  his  per 
isonal  attention  ;  and  claimed  dama;;es,  in  all,  to  the  amount  of  ,C  {.°>S,i:;.'i. 

The  proofs<m  the  part  ot  the  Cidted  States  show<'d  that,  up  to  his  de- 
parturefrom  Charh'ston.  in  duly,  isi;:;,  he  had  been  lai;4t'ly  and  actively 
eii^^aj'ed  in  rendering;"  aid  to  llie  confederate  <>-overnment  in  its  war 
ii;;ainst  the  I'nited  States;  that  he  individually,  and  as  a  partner  in 
tlie  linns  of  Vernon  vV:  Co.,  and  \'eriion,  .James  ^V  Co.,  had  entered  into 
lai'^je  (Diitracts  with  the  coiifcderate  n'overnment  lor  the  supply  of  arms, 
ammunition,  and  military  su[)plies,  includiii;,'  twelve  lar;;'  •  rilled  can- 
non, and  laij;e  quantities  of*  ;j:uii- bands,  rilles,  pistols,  powder,  army 
clothing';  shoes,  blankets,  »S:c. ;  that  lu^  had  been  en<ia;;('d  in  the  man 
ufaeture  of  arms<lmin^'  the  \var,  at  Wilmington,  N.  C.,  Ibr  the  beiielil 
of  the  confederate  jj[overnment.  At  the  time  of  his  capture  some  t»f  his 
contracts  were  Ibund  upon  him:  thes(>  contracts  also  ;4i.intiii;;  to  his 
Jinn,  on  the  part  of  the  conleih'rate  ^•overnnuMit,  cert.iin  pii\  ile;4('s  of 
imrchasin<>-  r'otton  and  tobacco,  and  transiiortinij:  the  same  without 
hindrance,  and  e-xportiiij;'  them  to  all  ports  except  those  of  tlu^  United 
States,  with  onvoy  if  desire<l.  (Ji)rrespondence  ensued  between  I<oi'd 
Ijyons,  Her  Majesty's  minister  at  Washin^^ton,  and  Mr.  Seward,  the 
Secretary  of  State  of  the  Cnited  States;  and  upon  s;il)iiiission  to  Her 
.Majesty's  le;:ation  of  the  prools  lound  iquMi  thi'  [Kison  of  the  claiaiant 
further  intervention  in  his  l»ehalf  was  declined. 

Mr.  Stuart,  lilt  a  Her  Majesty's  acliny;  niitiister  at  Washiii«jton.  on 
the  2.'{d  Septemlwr.  1S(;;{,  adtUossed  to  .Mr.  N'einon  th.  foUow  in-j  lettvi  : 

Silt:  I  !>•;.?  to  inloriu  yon,  in  n-ply  (<•  \<tiir  litter  ol  tlio  1  ■•  li  iiwrint.  thn\  1  latflv 
ri'cci\<vi  i'.<lis|tit-  It  tVum  I':irl  |{ti>Mil,  wtal  iiij;  tliiit  y-nn  casi'  IukI  Il.^j  lull  y  «-Misi(lcrf<l 
l)y  llcr  .Miijrsi  \  H  j;,)ViTiinu'nt  ill  <<>iii<iiniil':Ui(iii  w  irli  tht*   \»\\  •!<''  ^is  «>(  tlic   rrowM. 

It  ii|)|>citi'H  to  lli'i'  .^lit,j<■^tJ'^^  gwvt'fuiiMiii.  jinlnui;;  lt\  till'  (!\iii«f*ui,  tN'iMliii'i<«l,  tijiit.  y»iii 
are  a  Itoni  IJiitislt  Mili.i'M-t.  •■mt\  it  il»»«'?i  iiu»  a|>|Mar  that  yrtu  li*vi>  i*l>ctMu<Ml  iiattti-a-li/.a- 
tioii  ill  till'  I'nitfil  Staffs  >»i-  '•.\ci-.-is.>tt  ymHli.a.  pciMu-^i-s  !i^  a  ti'i/<'.i, 

Itiit  taking  oIIk'I  <- rrii'iistaiK'cs  iiitw  cousi-a<  ration,  ami  nioic  p»i'iMi-ii}i»rlT  th:it  \ on 
hiiv«  i<li'iiiili('<l  yoursi'ir  in  tii"  sti'K  most  uiiian  r  willi  l.lin  titMiiiH'  i»t  ih«'  mh-i'iiMimI 
('otitiMlcralo  .*»(atiH,  iiml  tliat.  you  *■!•«,  w  I*-*  talki-u,  afMin!I>  •I'iiuni'd  in  ri»»i<li'riim 
inatci'ial  assist iiiiiM-  to  tin-  ;{()V»'.n»«»"'it of  Ht-^  Htatt-n,  iil'!il»<»H'.jli  iltiiiviii;;  a  coniimM'cia! 
profit  fnun  MO  <loin>j,  H""  M.y«'Hrv*:;;.iv<H"iiBitsrii  .in- '»!  i»<.i»ioii  nliai  thf  I'uitiMl  Siat<*s 
(liiviiniiiiMil  all'  JiiMiiilt'il  in  troatiiiK  you  »<  .-»  */»»>•»»    «.  iHi}»iii'cMt. 

Till'   I  \  idi'iKtf,   miMi-.ivci,  sli(»w.>   ilial  ;:!lluinjjli,  «.u.  uig  a   rt'Mtlctice  at' I  wenty-tlu'ot' 


AOKNTS    KKI'OKT. 


S3 


iiiid  tlic 

)  jui'  tlicr 

«;  inarsliiil 

ill  tvliicli 

coiitiiH'd 

y  that  lir 

lllltl    \VA\V 

il  in'iiiiis 

tlio  wash' 
'^  liis  iiu- 
)t'  his  j)t>i 
,C{;Js,i;i:;. 
to  liis  (Ic 
I  aclixfiy 

I  its  war 
lartiicr  in 
iTt'd  into 
\-  oi"  arms, 
illt'il  can 
ilcr,  army 

the  tiiaii 
\n\  hi'iH'til 
(ino  of  liis 
ii;;  to  his 
kilo;;('s  of 

»,     WltilOIll 

h»^  Uiiit«'(l 

(•I'll    I,oi<l 

wai'il,  thf 

)ll    to     Il«'l' 

t',lai;«ant 

ii«rton.  on 
iifi;  letter: 

i.ii    I    Iat<'l\ 

>   «  'Mlsidclffl 

tlif    Criivvt'i. 

I'd,  tliiit  yi'ii 

iiatimiuli/.u- 

•^r  t.))at    v  oil 

*H-     xil-Cilll<'ll 

II  riMMlcrinu 
I'DiiiiKt'i'cia! 
litfd  Siat<-H 

wtinty-threi' 


1 


ymirs  ill  tli(^  SontlnTii  Stiitfi.",  villi  ]i:iiil   (iccasiiMiiil  visits   to   Kii ;,'!;« ml.  yon   liad    no  iii- 
ti'iitioii  of  irtnruiii'j- to  iii'riii:in<'iit  riMdciicr  in  your  ii;iti\c  i  iiiil  ly.  and  thai  \>>n  wfic 
inaclically  and  ,lrj'(ulj  a  \sillinj;  lili/.ni  of  tlic  Conlrdcralc  Stahs.  cn^a^cd  in  «(|niii 
jiiiijj  tliidr  {limy. 

Iter  .M.iji'sty's  jjovcnmicnt,  tlu'rcforc.  considfr,  nmli'i- (In' I'iiinni-^taiuM's,  yonr  ifli-asn 
camiot  lit"  ilaiiiird  as  a  matter  oC  linlit  iiificly  JMcansr  yon  wi'ii-  lunn  a  lliiti-.li  snlij;  i-l, 
tint  Karl  IJiissidl  di'sir.'s  that  Uir  Maji-sty's  h';,'alion  .siionld.  m-virlh  1. -is,  .-mh  :i\or  to 
jiiTsiiaih'  thi-  I'niird  Slates  ( Juvriiinii'iil  to  initiL^ate  or  slioitcn  your  i  ajiti^  iiy. 

I  aci-iircUnjily  ri'iinMi'iit>'il  to  th*  .S  •cn'tary  of  .St.iti-.  on  tip-  H'lh  in -trif,  th.it  it. 
would  111-  a  f;rali|ii'ation  to  Ilrr  MaJ. •sty's  ^fov.-rniiiiMit  to  learn  that  ymir  e.iiilivily  Irni 
liet'ii  iiiiti;;ated  or  shortened  tliron^h  the  (deim  my  of  the  I'niied  States  (i.ivei  iimeiii, 
and  your  ease  is  eiiiisei|iie!itly  a;;ain  under  eonsideialioii. 

I>'iom  that  lime  luitli  ller  .Majesty's  uovenimeiit  luiiformly  ami  con- 
sisti'iitly  (leelineil  ;iiiy  iiiteiiialioiial  iiiterCeiriiei'  lor  the  lUMtei'tioii  of 
.All'.  N'eiiion,  and  »liscl;iimeil  all  pretence  ol  rio-ht  to  iiitei\eiie  in  his  hc- 
hall'.  Sir  I'lcileiiek  llruci',  tlieii  !Iei' .Majesty's  ministerat  NVashinoion, 
as  late  as  liHIi  O/loUer,  ISi;"»,  said  in  a  letter  to  Mr.  N'ernoii,  in 
r. 'Spouse  to  an  application  riMiii  'liiii:  ''.My  instiin'tions  proliibit  my 
iiiteireiiii;i  in  your  liehall." 

A  lahored  ar;;"iimeiit  was  tiled  on  Itehalfof  the  claimant.  1>\  which  it  was 
coiit<'iided  that  the  iiiipi  isoiiineiit  of  ihc  claimant  without  trial  was  utterly 
iiiijiistilialfle ;  that  it  was  proloii;icd  in  a  mniiner  iie\er  contemplaled  hy 
the  l>ri(ish  aiithoi  iti<'s;  that  while  under  r«>straiiit  his  tieatineiit  w  as  inde 
teiisihle,  and  that  the  order  of  banishment  from  the  I'liiled  Slates,  and 
the  siiiiseipient  refusal  to  revoki*  it,  were  oat  ra^i'es  aoiinst  all  law  rnd 
justice.  That  the  dei-isimi  of  ller  .Majest.\'s  oovernmeiit, Just it'\  in.o' the 
treatment  of  the  claimant  hy  the  United  Slates  ('lovernmeiit  as  a //<^ 
/(trio  liellio'eiciit,  was  erroneous ;  that  the  condition  of  the  claim  ml,  at 
the  time  (d'  his  capture,  was  tint  of  a  neutral  alien  eiio-,|o',.d  in  commer- 
cial trans, ictioiis  only  with  the  conleder.ite  ^fovcriiment,  and  that  such, 
tiaiisaciioiis  were  not  criminal  and  did  not  depri\c  him  of  his  neutral 
character.  Tiiat  even  if  he  had  pnn  ioiisly  been  an  enemy  by  domicile, 
hi' had,  wlicM  he  oiidtarked  from  ('(uiihston  on  the  l[uiitress,  left  tiie 
ciMintrN  of  his  lormer  domicile  w ithoiit  tlic  intention  ot  returniii;>,  and 
his  native  domicile,  native  alle<.Mance,  and  native  nlntiis  had  thereiipou 
instantly  reverted  to  him.  and  that  the  ('.ci-ision  of  Iler  Majestv's  o,iv. 
crnitu'iit.  Justifying;  his  detention  by  the  liiiled  States,  and  li'tusin;,'  to 
intervene  in  his  behalf,  cmdd  not  be  taken  as  prejudicin.ii"  the  claimant's 
individual  rij,dit  to  ret  himation  under  the  rules  of  international  law. 
Tlu'conn.sel  for  the  claiiiiaiit  cited,  in  siippHt  of  these  proposition  <.  tlu> 
followin;;' antlKM-ities  :  4  l»lackstoHe's  Com..  7i'» :  Ilalleck's  Liw of  \Vai> 
c.  :.'!>,  §  ;'i,p.  (i<(."i;  2  Kent's  Coin.,  l!>;  Inolis  r.  The  Sailor.s"  Siiii;:  llarlHU', 
:i  Pet.,  <>!»:  Vaitcl,  lib.  1,  e.  IL'.  §  lilS;  J  IJrown  Civ.  .^  .\dm.  Iaw,r.  7.  p. 
.SL'T;  The  Veiiu.s,  S  ('ranch,  L'TS;  The  <'ases  of  .\dlani.  Xo.  |l»;  Doyle, 
No.  Mi,  juhI  T(m;;iie,  No.  V.),  decith'd  by  this  conimissi(^ii ;  Calvin's  case, 
7  Coke;  (lardnet's  Inst.  Int.  Law,  pp.  I  |H,  IS'.J;  lavin^rslon  /•.  .Maryl.ind 
Ins.  Co.,  1    Cram  h,  oi'J;   Wheattnrs   Klements,  parti,  i;.  1,  pp.  .*»(;!    to 


84 


AMKllICAN-lJUITISII    CLAIMS    COMMISSION. 


I  ! 


5(1!);  Iliillcck,  «'.  'Jl,  §  IS,  p.  'Mi;  id.,  v.  L'!),  §  .*{,  p.  ;{1."»;  1  Koiit's  Com., 
§  r>,  p.  7);  Story's  C'tnitiift  of  Ijiiws,  c.  .">,  §  -7,  p.  (>1  ;  \VooI.s»',\'.s  Int.  Law, 
p.  100;  1  Diicroii  Ins.,  pji.  ."»iri,  ."jLMI  ;  The  Fijukh's,  S  Crancli,  2S(>,  s.  c. 
1  tlall. ,(".<'.  K.,(ill;  Tlit'l)osH«'rinaiios,iMVli('ar.,77;  T1k«  Fi  itMidscliall, 
.{  /■//.,  II;  Tlu^  Uiiiti'd  States  is.  (Itiillcin,  II  II()\v.,(»i»;  T\u'.  Ann  (liven, 
I  (Jall.,C.  (".  I{.,  L'7:);  The  St.  liawience,  /'/.,  L5iJ7  ;  Catlin  rs.  (ilaildin;,',  I 
Mason,  .">ns ;  The  State  rs.  Ilalh'tl,  S  Ala.  Itcp.,  I.V.»;  ;!  IMiillinkore,  §  «.">, 
p.  1LM>;  id.,  §  1,  p|).  101,  (iOl  ;  Twiss,  §  M,  \).  S.; ;  De  I5ai<;li,  e.  2,  p.  'M  ; 
VVestlake,  e.  .5,  §  10,  |).  ;{!>;  L'  Wildnian,  pp.  ].">,  l.'{ ;   I  id.,  p.  ."»7 ;  The  In 

dian  Chiel",  ;{   Koh.,  1-';  The  Ftinseo,  /./.,  :i[  ;  The  Main .v,  L'  /</.,  :;-".' ; 

Tlie  Ocean,  /</.,  01;  The  \'iryinia,  '>  id.,  1)S ;  Ijoswell's  Lessee  cti.  Otis,  1> 

I  low.,  ;>;{(). 

The  eoinniission  unanimously  disallowed  the  claim. 

In  the  ease  of  Willianj  IJ.  I'oiwood,  No.  ."JlH,  the  claimant,  a  Hritish 
subject,  domii'iled  iu  I''n.uland,  in  O.'toher,  lS(il,  landeil  at  New  York 
from  the  steamer  City  of  Wasliin;;ton  from  (^)neenstown.  He  was 
arrested  immediately  on  landin<.;  from  tlie  steamer,  on  inlormation  that 
he  had,  lioth  in  Liverpool  and  on  hoard  the  steamer  upon  his  passa;>e, 
expresscti  himself  as  a  warm  trii-nd  (»f  the  ichellion,  ami  that  he  was 
connected  with  a  I'trm  en;>'a^ed  iu  runninjL>°  the  blockade,  and  upon 
the  suspicion  that  his  visit  to  New  York  was  for  the  purpo>e  of  pro. 
motinj,'  corres|  oaiU'Uce  with  the  enemy.  He  was  detained  at  the  otlice 
of  the  chi«'f  of  polict^  in  New  \ Ork  for  some  three  or  four  hours,  his 
ju.son  and  l)a;i,na<i('  examined,  and  he  was  Iheii  discharged.  He 
«'laimed,  as  (lama^cs  for  his  arr«'sl,  jC"),(UM).  The  commission  disallowetl 
hi«  claiai,  Mr.  (Joinmissioner  (Jurney  dissentin;,'. 

In  the  cases  of  Stephen  .larman,  No.  tIS;  lloliert  IJowdeii,  No.  11!); 
Samuel  .I»>seph  Ui-d^'ate,  N»f.  iL'O ;  and  .hthn  Henry  Kllsworth,  No.  121  ; 
tlu'  elaimiints  were  respectively  the  master  and  passengers  o;;  the 
!»ritish  st<'amship  INtciholV,  captured  as  pii/e  of  war  liy  the  United 
States  steamer  N'aiider  >ilt,  near  the  Island  of  St.  Thomas,  iu  Feb- 
ruary, ISi!,;.  The  ( ..  "  of  the  I'eterhotf  will  be  more  lully  reported 
under  a  siilisecpient  head.  I>owdtii,  l{ed;iale,and  Fllsworth  were  ij-spect 
ively  in  eharj;(^  of  portions  of  tlu"  carf^o  of  the  FeterholV,  <'ither  as 
owners  or  cousiffiiees,  or  as  ajjents  tor  owiieis  <ir  eonsi^iuees.  The 
IVterholl"  was  taken,  on  her  eaptnie,  lirsl  to  Key  \\  est  and  thence  to 
New  York,  where  she  was  lll»elled  in  the  Cnited  Stales  disliiet  couit. 
.larman.  F»owdeu,and  Ifcdyate  were  taken  with  the  \cssel  to  New  Voik. 
and  detained  till  their  depositions,  in  juriKirntnito,  weie  tal»»'U.  when 
they  were  dischar;4e<l.  lOllswoith  was  disci  larj.M'fl  at  Key  \V<'sr,  without 
bein;;  tiiken  to  New  York  .>r  examined  as  a  witiw*«s.  lie  was  detained 
on  board  the  l*eterli«»t!"  from  her  caj'turc.  2.1th  lM'l)iuary,  till  the  L'.ltlj 
March,  ciuliteen  dn\««  after  her  arrival  at  Key  West.  Jarmau,  IJowden, 
)ind  IJedyate  w»re  «'\ainined  as  witnesses  in  New-  Yoik  on  the  1st  day 
of  April,  the  fourth  day  after  the  arrival  of  the  reterholf  in  New  York 


II 

hi 


3 


ACEXT.S    UKl'ORT. 


K} 


Mit's  Coin., 
8  Int.  Law, 
I,  li.SO,  .s.  c. 
U'lnlscliall, 
U)ii  (JriM'ii, 
il<ui(liii^%  I 
I  more,  §  ■'^•"», 

;•.  L',  p.  ;5i; ; 

>1 ;  Tlu'  In 
Li   /./.,  :','-2  ; 
;  IS.  Otis,  it 


1, 11  Fliitish 
Ni'w  York 

lie    Wits 

latioii  tliitt 
is  |>assa;4(', 
lat  lit^  was 
and  ii|ion 
ts<'  of  pro. 
tlu'  ollicc 
lioiirs,  his 
i<i«'<l.  He 
lisallowed 


,  No.  11!); 
,  No.  42!  : 
■s  o;!  tilt' 
i»'  United 
:   in    1m'1>- 

reported 
•V  ies])t't't 

either  a>< 


Harbor,  and  were  respectively  discharged  immediately  aftfir  their  exain- 
hiation. 

On  the  part  of  the  elaimatits,  respectively,  it  was  contended  that  the 
capture  of  the  !*eterho(l'  was  nidawfnl,  and  the  detention  of  these  claim- 
ants, respectively,  was  likewise  nnwarrant»'d  hy  prize  law. 

On  the  part  of  the  Tnited  States  it  was  contended  that  the  IN'terhot! 
was  ri^fhtfnlly  captured  on  justifiable  cause,  and  that  the  detention  of 
these  claimants  as  witiu>sses  was  Wiirranted  by  the  law  ami  practice  <»f 
the  prize  court;;  ar.d  that  as  to  ICIIsworth,  his  release  at  Key  West 
without  examinatio!!  as  a  wituesss,  and  without  beiii;^  taken  to  New  York 
wheie  the  vessel  was  libelled,  could  not  be  consi«lere»l  as  an  a^ijiravation 
of  his  imprisonment,  luu'  as  };ivin<;  him  any  i'i<;ht  of  reclamation,  whi(;h  he 
would  not  have  had  if  taken  to  New  York  and  examined  as  a  witness,  as 
lie  lawfully  mij^ht  have  been. 

The  commission  unanimously  disallowed  all  the  claims. 

The  ease  of  IMiilij)  (leorjje  Ueaumont  Dean,  No.  Km,  was  of  like  char- 
acter with  the  four  last  named.  The  claimant  wns  captured  on  board 
the  Uritish  bri^f  Djishinj;  Wave,  (whose  (tase  will  be  hereafter  reported,) 
oir  the  mouth  of  tlu'  Kio  (liand(^  IJivei'.  in  Novembei,  IS*;,",.  He  was 
rated  as  an  able  seaman  on  the  brii;,  thou^^h  in  fact  a  passen;^er  ami  a 
son  of  one  of  the  owners  of  the  briy.  lie  was  taken  with  the  vessel  to 
New  Orleans,  where  the  vessel  was  libelled  ;  was  examined  as  a  witness 
ill  preparntnrio  L*Sth  November,  ISO.'J,  six  <lays  aft»*r  the  arrival  of  the 
vessel  at  New  Oilcans,  and  w;is  then  released.  His  memorial  alle;»('d 
that  fi'om  that  timt'  till  the  L*.'»d  .Iidy,  IS»;i,  lie  wiis  "detained  on  parole 
by  the  comntissionets  of  tin*  I'nited  States  ( Jovernment "at  New  Orleans, 
but  his  evidence  showed  no  such  detention  or  parole,  and  it  appearcil 
that  his  slay  in  New  Orleans  after  his  exainination  Wiis  a  voluntary  one, 
for  the  purpose  oflookin^j;  after  the  iutep'sts  (»f  the  owners  of  the  vessel 
and  carjro. 

His  claim  was  unaniuKMisly  disallowed  i»y  the  <'ominission. 

In  the  case  of  (;eor<re  I'.  (';mty.  \o.  1 1.!.  the  cbiiimint  was  \\  P.ritish 
subject,  for  several  years  ilomicilctl  in  Cent lal  Anienci,  but  from  March 
to  iN'ccmlu'r,  ISd.'.,  tem|torarily  resident  in  the  cityof  New  York,  en;;ay:ed, 
as  hi'  alle;,'ed,  in  conimcrcia!  «!i(erprises  eonncctt'il  witli  Central  Aineiica. 
He  was  arrested  in  New  York  by  the  United  States  military  autiioritics 
on  the  eve  of  his  departure  for  Nicarajjfua  by  steamer,  LMth  December, 
ISt;;?;  detained  in  a  prison  in  the  city  of  New  ^ OrU  for  three  dii\s.  then 
triuisferrcd  to  Fort  Lafayette,  and  there  conlined  till  the  Utii  March, 
IStit.  when  he  was  dischar^^-ed  without  trial  and  without  information  of 

the  yroundsof  his  arrest,  «'\cept  the  (,m lal  statement  that  he  had  been 

en;;ujred  in  aidinj;  the  enemies  of  the  United  States,  or  vi(>lalin;;  iImj 
tu'utrality  laws  and  re;iidations.  It  appciireil  th:it  he  was  arrested  in 
company  with  one  Dr.  Sej,nir,  in  connection  with  whom  he  had  been 


If. 


s|.. 


HG 


AMKRICAN-nRrilSIl    CI-AIMS    COMMISSION. 


W 


(•n«,';ijf(  (1  ill  piircliiisiii;;  arms,  as  was  allc^^i'd  l>y  tlnMii,  (or  tlic  state  r<f 
San  Salvail<>i-,aii(l  that  tlir  rit'ciiiiistaiiccsor  the  |Min-lias('aii<l  slii|MiM>iit  *>!' 
thcsf  aiiiis  wen-  such  as  to  U'm\  to  tlic  sfioai,'  siis|iicioii  that  tlit'.v  wjmc 
ill  tact  purchased  and  shipped  lor  the  use  of  the  <'onl'edei-ate  ;^oveninieiit. 
Shortly  aCler  Ids  arrest  he  was  lM'ou;>ht  before  a  military  eomndssion  at 
New  York  and  interro^jatt'd  as  to  his  connection  witli  Dr.  Se;;iir,  find 
purchase  of  arms  made  by  him.  .Most  of  these  ipiestions  ht^  refused 
to  answer,  on  the  ;;round  that  lie  liad  "  been  advised  not  to  compromise 
hiiiiself  or  his  friends  in  any  sliapi*  or  manner."  lie  was  thereupon 
nMiianded  to  prison.  The  cliar<j;e  that  the  arms  were  in  any  way  desij^ned 
to  aid  the  enemies  of  the  I'nited  States  was  not  siistaim'd  by  the  proofs. 
Tile  claimant  alle{;t'd  lar;;i'  i»ecuiiiary  losses  resullinj;  from  his  imprison- 
nieiit. 

The  commission  imuh'  an  award  in  his  favor  for  •■i<l.~>,70(),  Mr.  Com 
iiiissioner  Kra/.er  dissenting;'  on  tlie  question  of  ann>unt. 

tlohn  Tovell,  No.  M(»,  a  IJaptist  cleifiyman,  was  arrested  at  Nashville, 
Ti'iin.,  on  the  !Mli  November,  ISlJi*,  on  the  «-har;;e  of  disloyalty  to  the 
United  Slat«'s,  and  of  having;  in  the  course  of  a  funeral  oration  delivered 
at  Nashville  used  lan;;ua;;(>  sir(m.i;ly  denunciatory  of  \\w  military  author 
;lies  in  charjic  of  .Nashville,  and  tendin;''  to  incite  disaltection  and  rebel 
lion.  Nashville  was  a  town  within  the  insurrectionary  states,  capture(l 
i»y  the  I'liited  Statt's  in  the  sprinjj  of  ISIIU,  and  held  by  them  as  a  mili- 
tary post  and  under  military  ;>'overnnient  at  tlu^  time  of  the  claimant's 
arrest.  He  was  detained  in  juison  till  the  Hlh  June,  180.J,  and  then 
liaiiished  into  the  conlederate  lines. 

The  commission  awarded    him  ■•(S.W),  Mr.  Coinini.ssi()ner  Frazcr  tlis 
sentinjjf. 


Henry  1*.  Smith,  No.  t(M,  a  idiysician,  domiciled  at  Louisville,  Ky.. 
within  a  State  not  in  rebellion,  was  arrested  at  that  place  by  tlu^  military 
authorities  of  the  United  States,  in  .Inly,  lS(i|,on  a  char};(M)f  (Mnailatin;;' 
tieasimable  doi-uments,  the  d(»cumenlH  in  (juestion  Iteinj;  copies  of  a 
Iiandsoinely  printed  phu'artl  hi^>lily  laudatory  of  the  confederate  (jeneral 
ilobc!  t  l).  liCe,  as  a  patriot,  (Miristian,  and  hero  of  nnfalteriii;;;  iUiVotion 
to  tluty,  »S:c.  liouisville  and  the  State  in  which  it  was  sitiiaedt 
<'oiitained  a  lar;>e  proportion  of  sympathizers  with  the  rebellion  ;  and  it 
was  contended  on  the  part  of  the  United  States  that  tlui  circulation  of 
this  iloiaiment  by  Dr.  Smith  was  made  with  the  direct  purpose  and  in- 
tent of  {iivinj;  ai^l  to  the  rebel  cause;  that  it  was  calculated  togivesu(!h 
aid,  and  that  his  iin|)risoninent  and  detention  wt'io  lawful  military  acts- 
The  claimant  was  imprisoned  for  about  fourteen  weoks,  and  was  then 
(lischarjjeil  without  trial. 

The  coinmission  gave  an  awaril  for  $1,540,  Mr.  Connulssioner  Frazer 
dissenting. 


i 


ACiKNTS    K'KI'OUT. 


87 


lie  sfatp  of 
liipiiiciit  <it 

Micy  wtMc 
jvt'iiimciit. 
iiiiissioii  iit 
>*',Uiii',  find 
lir  rt'liisiMl 
iMnproiiiisc 

tlM>r(>ii|M)ii 
.V  (l«'.si;;^m'(| 
till'  proofs, 
i  iiii]>risoii- 


Ifohcrl  INIi'ICfowii,  Xo.  I(i".,  \v;ih  in  M;irt'li,  I.SIJ'J.  uliilo  (MiiMloycd  iis  li 
sliip  ciirpciitcr  in  llii'  sciviciMd' Mic  riiilcd  Shitcs  (iovcniini'iit  on  ln)iinl 
tlu'  ^innliMiit  licnton,  on  tin*  Mississippi  KiviT,  near  tin*  nionili  of 
tlic  Va/oo,  air('st('<l  by  liic  cotnniaiidin^' olliccr  (d"  f  lie  ;iiin  l>oat,  fonlincil 
in  tln^  Indd  lor  aluml  i'kiii'  <I  i,\  s.  tlicn  rranslorn'd  (o  anotinT  ;.'iinl)i).it, 
and  talu'ii  fo  Cairo.  III.,  wlicrc  In-  wasdiscliai'jicd  on  ilicotli  April,  aftci- 
a  f'(in(iMcni»-nt.  in  all,  of  tliirtccii  da\s.  ilc  allciicd  improper  trcalincnt; 
dnriii;4'  Ins  conlint'iiicnt,  in  consiMpn-ncc  olwhicli  Ids  heal  III  was  nialriially 
ininrcil.  His  arrest  was  iiiion  the  elr,ir;;e  »d"  disloyal  and  seditions 
lan,!,Mia;ie  a^Miinst  llu*  I'liili'd  8lates  wliile  eni|tIoye(l  on  hoard  the  ji'iiii- 
boat. 

The  coinniissioii  nnaniMioiish  inad<'  an  award  in  liis  I'avoi'  for  ■'!<l.K»7. 


5.  /•/•/:>'  cdsfs. 

These  elaiais  relaleil  to  vessels  and  tlnii- ear^ioes  cajd  nit'(l  as  pii/e 
by  tlie  I'nitiMl  Slates  diiriii;;  the  war,  and  libi'lled  in  the  pi  i/ecoiirls  of 
tlie  rnil«'il  Stales.  In  a  portion  ofllieni  linal  senleiiee  (d' eoiidemnatioii 
of  the  v»  ssi'l  (M' (•.ir;;o,  or  both,  was  ;;iven  l>y  the  <'i»iirts  of  the  I'niled 
{Slates,  and  the  claiin  was  now  bron;;ht  for  the  allejicd  value  of  such 
V(»ssels  anil  ear;i:oes.  alle^^iii'j;  the  eoadv'ari  ition  to  h  tve  iieen  wion;^- 
I'ul.  In  the  other  eases  JiiilLrnienl  id'  r«'stitiUioii  was  ;^i\en  by  flio 
coiuts,  ami  the  idaini  was  no.v  broi  jlit  lor  d  un  i;j;.'s  by  reasui  of  tho 
alie;4;ed  wron^fnl  eapliui'  and  detention,  and  for  ei)sls  and  e\i)enses  iii- 
niired  in  lespect  of  the  same. 

Tlie  wliok'  number  of  memorials  Hied  by  dilVerent  elaiiiiants  for  .such 
<'apfures  was  se\enty-si\,  some  ol"  the  memorials  eoverinj«;  elainis  tor 
several  diU'ereat  vessels,  as  in  the  ease  of  S.mders  dt  Sins,  No.  L'Hl,  in 
which  dama;4es  were  elaimed  for  the  eaptnre  and  eondeniMation  of 
twi'iity  seven  vessels. 

Tlie  whide  niiinber  (d*  vessels  captni'ed,  in  respect  of  which  and  tludi- 
t!;U';;de.s  claims  were  iider|»i»se<l,  was  seventy,  in  some  iiistaiiites  many 
claims  ol"  dilVerent  alh'ji'ecl  (jwners  beiii;;;  interposed  inrespect  of  the 
.same  vessel  and  her  ear};(),  as  in  the  case  of  the  IN'lerholV.  in  re.^artl  to 
which,  and  dill'ereiit  portions  (d'  her  car-^o,  twenly  twt)  memorials  werii 
tiled. 

in  respect  of  the  capture  of  six  of  these  vess(ds  and  their  »'ar;ioes,  or 
portions  of  the  same,  awariLs  of  };reat<'r  or  less  anioniiL  were  made 
Jifiaili.st  the  I'liited  States. 

Ill  respect  of  the  remaining  sixty-fuur,  the  claims  wi're  wholly  disal- 
lowed. 

The  whole  amount  claimed  as  dumayes  apiinst  the  United  States  in 
all  these  ca.ses  ^was  ij(."»,."»(J0,'.)L'4,  besides  interest,  amount  iiij>-,  with  th« 
addition  of  interest  for  the  averafie  time  elaiiiied,  to  >i!>,M>4,;{(M). 

The  whole  amount  of  the  allowaiM-es,  in  respect  of  the  si.\  ve.SHeLs  an 
to  which  awards  were  niaile,  was  ."jJ.JiSU,!??. 


I 


'  { 


88 


AMKIMCAN-imiTISH    CLAIMS   COMMISSIOX. 


Tlw  <iii('sfl()ii  was  i'liily  raisj'tl,  (»ii  tin*  part  oftlio  ITnitcd  Slatox,  as  to 
tlioiiii'isdiittioii  of  tlii>si>  \tv'v/A'  vaxsoh  l)y  tli«t  coiitiiiission,  hotli  in  ri'spiTt 
to  rases  \vlMMt>  the  division  of  t)u>  ultiinatc  appellate  trilxiiial  <>t  the 
United  States  liad  been  had,  and  to  lhos'>  in  whirh  no  appeal  had  lieen 
pi'osecnled  on  the  part  of  the  claimants  to  such  ultimate  trilinnal.  As 
to  the  former  <'lass  ot  eases,  tht^  iindersi;;;ned  may  properly  state  that 
he  personally  entertaim>d  no  doiiitt  of  the  jurisdiction  of  thecommis- 
Kion,  as  an  international  triliunal,  to  review  tluMh'cisions  of  tln^  pri/u- 
(MMirts  of  the  I'nited  States,  where  the  parlies  alle;fin;jj  themselvi'S 
a^i^rievcd  had  prosecuted  their  claims  hy  appeal  to  theirourtof  last 
n'soit.  As  tliis Jurisdiction,  howev«'i',  had  been  siunctinu's  qiu'stiuued, 
he  deeuM'd  it  th'slrabh^  that  a  formal  adjiulication  by  tlie  commission 
Hhould  be  had  upmi  this  <pu'stion.  The  commission  unanimously  sus- 
taitu'd  their  jurisdii'tion  in  this  ('lass  of  cases,  and,  as  will  be  seen,  all 
the  mendters  of  the  commission  at  some  tiini^  Jo'ucd  in  awards  a;;ainst 
tlie  United  States  in  such  cases. 


The  (pu'stion  as  to  the  Jurisdiction  of  the  commission  in  cases  whom 
the  party  complaiinn;^  had  tailed  to  prosecute  his  appeal  from  the  pri/e 
c(Uirt  of  ori;;iual  Jurisdictitm  to  the  court  of  ultimate  appellate  juris- 
diction, waH  raised  by  demurrer  in  seveial  cases,  and  was  ar;;ued  at 
len^rth  in  the  case  of  the  llritish  bri;;  Xapier,  Hyerson  and  others, 
claimants.  No.  117,  In  that  case  the  vess«''  was  <'aptured  as  prize  in 
Jidy,  IStiL',  by  a  United  States  vessel  of  war  near  the  mouth  of  the  (^ape 
Fear  Kiver,  on  which  liver  is  situated  the  pent  of  Wilmington,  in  North 
Carolina,  a  bl(icka<lcd  p(Ut.  SIm>  had  sailed  from  Turk's  island,  one  ot 
the  IJahamas,  with  a  ('ai'^^o  of  salt,  on  a  voya;j;t^  alle;(ed  to  have  been 
ilestined  loi-  the  poit  of  lleaufort,  N.  ('.,  then  iu>t  blockaded,  but  in  pos- 
sessi(Ui  of  the  United  wStales  fon-es.  Slu'  was  taken  by  the  <'aptors  to 
the  port  (tf  I'liiladeiphia.  and  there  libelled  in  the  United  States  district 
court  for  tlu'  eastern  district  of  Pennsylvania,  on  tin*  clhuj^e  of  attempt- 
in;;  and  inteiidiii;.;  to  \  idlate  the  blockade  of  the  port  of  Wibnin^ttui. 
or  other  blockaded  port  in  the  iiisurreeliouary  States,  and  was  con- 
demned by  that  court  as  lawlul  prize,  and  sold  under  th«>  «lecrct'.  The 
vessel  belon;ie«l  to  the  port  of  Vi.'rnKuith,  Nova  Scotia,  and  was  owned 
by  Ibitisli  subjects  there  residi'Ut.  No  appeal  appealed  to  have  been 
taken  frcmi  the  decision  of  the  district  coiiit  by  which  the  vessel  was 
condemned.  The  meiiMuial  ctuitained  a  general  aveiinent  that  neither 
the  vessel  nor  carjio  was  "liable  to  tionliscation"  iimh^r  the  law  of  na- 
tions or  the  laws  of  the  United  Slates.  A  demurrer  was  interposed  on 
behalf  of  the  U'nited  States,  specifying",  anionj;  other  {^rounds  of  <le- 
inurrer,  the  following' : 

'I'liiit  tlii>  mciiiorial  ilocs  not  sluiw  aii.v  iipix'al  (akiMi  fromOio  Juili^mcnt  of  saiil  conrt 
to  tlif  a|i|ii-liati' tiiliiiiiais  lit'  tlu*  I'liitt-il  States  iiaviii^  a|))icilati>  Jiirisilit'tiiin  tli<-r<'ot'; 
ami  (lot'N  not  show  tliat  tlic  ifiiit'tly  of  tlu>  claiiiiaiitH  tor  tin-ir  iill<-;;fil  ^rii'vancc  iimlcr 

till'  lawH  of  tin'  I  nitiil  States  linil  I ii   Hoiij^lit  or  piirMiifd   (r)  or  in  tln'  Judicial  tribii- 

luil  of  the  l.'niU'tl  States  liavitij;  iiltiiiialc  iipiiullate  jiiriHilietiuii  of  tliu  ttuitl  iiialtor. 


A(ji:nts  ur.i'oKT. 


KO 


t«'s,  as  t(t 
II  n'spcrt 
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s  against 


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I'iiii  lril)ii- 
iialtor. 


1 


On  the  arjiumeiit  of  this  ease  on  (leiiiiirier,  it  was  eonteinleil.  on  the 
part  of  the  I'niteil  Htates,  that  until  tli<' claiinant  has  exhaiistcM  his 
reiiieil.v  l».v  appeal,  ami  tiiids  hiinst'lf  still  ay:«;riev«Ml  l>y  tlie.jinlieial  tri- 
hniialoflast  resort,  he  has  no  yrinuinl  orre«'lain:Uioii  a^Minst  thernitetl 
States  as  the  workers  of  injnstiee  a;;aiiist  him.  That  it  is  only  in  the 
event  of  liiial  failiin>  of  justice,  after  pnrsnil  of  all  the  rcHrnlai  and  ordi- 
nary means  (if  redress,  that  any  adjudication  is  to  he  considered  as  work 
iiif;  wron^  ay:aiiist  a  foreij^n  litiy[anl  so  as  to  eiitith'  him  to  reclamation 
tliroii;;h  the  intervenli<m  «)f  hisown  ;;overiimeiit.  That  theliti;;ant  who 
stops  short  of  this  and  siihmiis  to  the  in<l>;'menl  of  tin'  inferior  conrt, 
wiihont  seek  in;;  a  review  and  reversal  of  such  jiid.^Mneiit  l»y  the  appel 
late  tril)iinal,  in  etfectconcedes  the  cMriectncss  of  the  jnd;;nient  to  which 
he  siilmiits.  The  counsel  for  the  llnitJ'd  Stales  cited  the  report  of  Mr- 
Murray,  iifterwards  liord  .Manslield,)  I7"».{,  upon  the  reprisals  made  Ity 
the  Kin^  of  Triissia  upon  the  Silcsian  lioaii ;  W'hcalon's  History  of  the 
Law  <»f  Niifions,  pp.  lMO,  L'll  ;  Wildman's  Institnt«'s,  vol.  I,  pp.  .■{."».{,.>."»  I ; 
Itntherforth's  Institutes,  vol.  L',  pp.. V.MI-T-S-il;  the  (>|»iiiionsof  Dr.  Nicholl 
and  .Mr.  I'inkney  in  the  «'ase  t»f  the  lletsy,  before  the  commission  under 
the  .seventh  arliclcof  the  treaty  of  l."»th  Noveinlter.  IT'.M.  Iietween  the 
United  States  and  (Ireat  IJritaiii.  (Whealoii's  file  of  Piiikney,  pp.  I!l.» 
to  L'7(;.) 

Iler  llritannic  .Majcst^N  's  counsel,  on  helialfof  the  claimants  in  this  and 
other  ea.ses,  maintained  that  the  doctrines  of  the  piiltlicists  in  re;.;ard  to 
the  ne<!essily  of  a  party  a;;y;rie\cd  foilowin^if  out  his  complete  remedy  in 
the  appi'llate  prize  courts  ol  the  nation  of  whose  acts  he  coniplaine«l, 
applied  only  to  the  (|iiestion  as  to  ^jronnds  of  war  and  reprisals,  and  did 
not  apply  to  the  (|iicstion  of  Jiirisilictiuii  by  an  international  triliiiiial, 
established  by  treaty,  with  the  Iar;;«'  powers  and  jurisdiction  conferred 
by  the  treaty  upon  this  commission.  That  ninler  tlu*  terms  of  the  treaty 
the  commission  had  jurisdiction  of  all  wron^i'iil  acts  committed  by  the 
authorities  of  the  (Jnit( d  States  upon  the  persons  or  in'operly  of  Ibitish 
subjects;  that  the  case  of  the  claimant  here  was  founded,  not  on  an  al- 
le^jed  denial  of  justice,  bat  on  aii  act  allciicd  to  lie  in  \  iolation  of  the 
law  of  nations,  to  wit,  the  wron^'fiil  capture  of  the  claimant's  vessel, 
which  act  had  been  adopted  by  the  Inited  States,  whose  armed  Ibrce 
committed  the  wroni;,  iind  of  which  wrongful  act  the  riiiled  States  had 
receivetl  the  benelit.  He  cited  Dana's  Wheaton,  §  li!»'_' ;  <'irotius,  liook  ."5, 
<'.  2,  §^  I,  ."»;  Wildman,  vol.  1,  p.  11»7;  the  treaty  between  the  liiitcd 
States  and  (Ireat  I'.ritain  of  17!M,  (S  Slat,  at  L.,  121,)  and  the  case  of 
the  bark  i'MU's,  before  the  commission  under  the  convention  oi  is,");;  b«'- 
tweoii  ttie  Lidted  States  and  (Ireat  Ibitain.  (Report  of  that  coiumis- 
■wion,  p.  M-,  \ 

The  c'triiMii-i^ion  held,  in  ene(!t,  (hat,  under  the  treaty,  they  had  juris- 
di«!tion.notwithstandin^'tlie  failure  «)f  the  claimant  to  pursue  his  remedy 
by  appial  to  the  court  of  last  resort;  but  that  such  failure  on  his  part 
would  be  considered  conclusive  again.st  him,  unles.s  .satisfa<tory  reasons 


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AMERICAN-BRITISH    CLAIMS    COMMISSION. 


t  : 


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IJ 


were  given  for  tlie  omission  to  appeal.  It  was  thereupon  nnaniinously 
onlered  by  the  eoinniission  that  thedeiiuurersbe  overrriie(l,l)iit  that  the 
chumaiits,  in  all  the  prize  cases  in  which  appeals  had  not  been  taken 
and  pursned  to  the  conrt  of  last  resort,  should  file  with  the  commission 
their  reasons  for  such  oniissions  or  failures  to  take  and  prosecute  such 
appeals. 

Subsequently  tlie  claimants  in  this  case  tiled  an  affidavit,  assigning 
as  their  reasons  for  not  appealing  from  the  decree  of  the  district  court 
the  following: 

Int.  Bi'cauKo  it  was  iiniversiiUy  known  in  Philadelphia  at  the  time  said  decree  passed 
tliat  app<!al8  from  the  prize  courts  there  by  claimants  were  almost  uniformly  confirmed 
V  itli  costs.  2d.  That  i)iihlic  opinion  there  was  in  sympathy  with  such  c()ntirmation8, 
under  the  suspicion  that  commercial  men  in  this  province  (Nova  Scotia)  were  in  sym- 
pathy with  the  confederates.  3d.  That  the  other  owners  of  the  Napier  were  not  of 
pecuniary  ability  to  procure  the  necessary  sureties  without  much  Inconvenience,  nor 
to  sustain  further  heavy  costs,  and  the  burden  of  loss  added  to  injin'y,  especially  as 
we  had  already  expended  nearly  $r)00  iu  counsel  fees,  agency,  and  travelling  expenses 
connected  with  tliis  seizure. 

On  the  tiling  of  these  "  reasons"  the  commission,  without  further  ar- 
gument, held  them  insuflicient  to  excuse  the  want  of  appeal,  and  unan- 
imously disallowed  the  claim.     On  the  decision  of  the  original  question 
Mr.  Commissioner  Frazer  read  an  opinion  which  will  be  found  iu  the  ap 
l)endix,  L. 

Under  the  order  for  claimants  in  cases  in  which  no  appeal  had  been 
taken  to  file  their  reasons  for  non-appeal,  such  reasons  were  filed  and 
passed  upon  in  the  following  cases : 

John  W.  Carmalt,  No.  89,  claimant  for  part  of  the  cargo  of  the  ship 
Amelia,  captured  and  condemned  by  the  United  States,  alleged,  as  his 
excuse  for  non-appeal  to  the  Supreme  Court  of  the  United  States,  that 
the  claimant,  being  then  within  the  State  of  South  Carolina,  then  at  war 
with  the  United  States,  was  unable  to  communicate  with  counsel  in 
Philadelphia,  where  the  vessel  was  libelled,  or  to  take  any  measures  for 
l)rosecuting  such  appeal  on  account  of  the  war  then  raging. 

The  commission  (Mr.  Commissioner  Frazer  dissenting)  held  these  rea- 
sons sufficient ;  but  subsequently,  on  the  hearing  on  the  merits,  unani- 
mously disallowed  the  claimant's  claim,  it  appearing  that  he  was  at  the 
time  of  the  allege«l  capture  domiciled  within  the  Confederate  States, 
and  his  property,  therefore,  liable  to  capl  are  on  the  high  seas  as  enemy's 
property. 

In  the  case  of  the  brig  Ariel,  R.  M.  Carson,  claimant.  No.  178,  the 
reason  assigned  for  non-appeal  was  that  the  claimant  had  never  been 
aware,  until  the  filing  of  the  demurrer  to  his  memorial  before  the  com- 
mission, "  that  there  could  have  beeu  any  appeal  from  the  decision  of  the 
United  States  prize  court  that  condemned  the  vessel  and  cargo," 

The  commission  unanimously  disallowed  the  claim,  on  the  ground  of 
the  iusufiicieucy  of  this  reason. 


AGENTS    REPORT. 


9^1 


In  the  case  of  tlie  schooner  Argonaut,  Joseph  IJ.rioycocli,  ad  mi  iiistrator, 
No.  203,  and  Frederick  Win.  Kn^'jiies,  No.  2(J4,  chiiinants,  the  reasons  for 
non-ai»|)eal  assigned  were  that  the  connsel  consnlted  by  the  chiiinants 
advised  them  that  there  was  no  necessity  for  taking"  such  appeal,  unless 
they  intended  to(!ommence  a  suit  in  a  civil  court  for  damages,  and  that 
such  claims,  arising  during  the  war,  would,  without  doubt,  be  ultin»ately 
made  the  subject  of  arbitration,  on  which  advice  the  claimants  acted, 
and  so  omitted  to  appeal. 

The  commission  unanimously  disallowed  the  claim  on  the  ground  of 
the  insufficiency  of  the  reasons. 

In  the  (!ases  of  the  brig  Sarah  Starr  and  the  schooner  Aigburth,  Cow- 
^am  Graveley,  claimant.  No.  2!)2,  the  reasons  assigned  for  non-appeal 
were  that  the  claimant  had  become  impoverished  by  his  losses  during 
the  war,  and  the  expenses  of  prosecjuting  his  claims  in  the  prize-court 
of  original  jurisdiction,  and  was  unable  to  incur  further  expense  ;  and 
also  that  he  was  advised  that  in  the  excited  state  of  the  country,  and 
in  view  of  the  tenor  of  other  decisions  of  the  Supreme  Court  of  the 
United  States,  he  would  not  be  likely  to  obtain  impartial  justice  by 
such  appeal. 

The  commission  unanimously  disallowed  the  claim  for  insufficiency 
of  the  reasons. 

In  the  case  of  ihe  schooner  Prince  Leopold,  Henry  A.  McLeod,  claim- 
ant. No.  30G,  the  claimant  assigned  as  reasons  for  his  failure  to  appeal,  his 
poverty  and  consequent  inability  to  meet  the  drafts  of  his  pro(!tor  and 
counsel  in  New  York,  and  his  expectation  that  his  proctor  would  prose- 
cute the  appeal  at  his  own  expense,  of  the  failure  of  which  expectation 
he  was  not  advised  iu  season  to  secure  the  services  of  another  lawyer 
on  those  terms. 

The  commission  unanimously  held  the  reasons  insufficient,  and  dis- 
allowed the  claim. 

In  the  case  of  the  M.  S.  Perry,  otherwise  known  as  the  "Salvor," 
John  McLennan,  claimant.  No.  370,  the  claimant  alleged  as  reasons  for 
non-appeal  that  the  case  of  the  vessel  was  hurried  through  the  prize- 
court  so  rapidly  that  he,  residing  in  Havana,  had  no  opportunity  to  in- 
terpose any  claim  or  defense;  that  he  was  advised  by  letter  from  Lord 
Lyons,  Her  Majesty's  minister  at  Washington,  that  h^  wo  ild  iiave  full 
opportunity  to  defend,  but  that  subsequently  it  appeared  that  the  vessel 
and  cargo  had  been  condemned  and  sold  some  days  before  this  letter 
was  written,  and  that,  though  he  attempted  by  correspondence  to 
secure  a  defence  of  his  rights,  all  such  eflorts  proved  futile  and  una- 
vailing. 

The  commission  accepted  these  reasons  as  sufficient,  Mr.  Commissioner 
Frazer  dissenting,  and  directed  the  case  to  be  heard  on  its  merits.  On 
final  bearing  the  claim  was  disallowed,  as  will  hereafter  appear. 


Iltfl  'IIM'I : 


Ml 
f 


92 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


In  tlie  case  of  the  sliip  Will  o'-tlie-wiap,  J.  G.  A.  Creighton  and  others, 
claimants,  No.378,the  reasons  assigned  for  non-appeal  were,  in  substance, 
that  tliey  did  not  know  the  case  was  appealable,  and  that  they  supposed 
that  their  proper  appeal  was  to  their  own  government. 

The  reasons  were  held  insutflcient,  and  the  claim  disallowed,  Mr.  Com- 
missioner Gurney  dissenting. 

In  the  case  of  the  brig  Minnie,  Wm.  H.  Fisher,  claimant.  No.  379,  tlie 
reasons  for  non-appeal  were  substantially  the  same  as  alleged  in  tlie  case 
of  the  Ariel,  No,  178,  supra. 

The  commission  unanimously  disallowed  the  claim  for  the  insuflBcieucy 
of  the  reasons. 

In  the  case  of  the  schooner  Adelso,  Henry  Horton,  claimant.  No.  437, 
the  claimant  assigned  as  his  reasons  for  non-appeal,  his  poverty  and  his 
apprehensions  of  the  danger  of  investing  more  money  in  law  expenses. 

The  commission  unanimously  adjudged  the  reasons  insufficient,  and 
disallowed  the  claim. 


The  above  were  the  only  cases  in  which  the  sufficiency  of  the  reasons 
assigned  for  non-appeal  were  specifically  passed  upon  by  the  commis- 
sion. In  several  other  cases  reasons  for  non-appeal  were  filed,  but  were 
not  passed  upon  by  the  commission  before  the  final  disposition  of  the 
cases  upon  the  merits. 

The  action  of  the  commission  upon  those  cases,  respectively,  will  ap- 
pear in  the  following  notes,  under  the  heads  of  the  respective  vessels. 

It  may  be  stated  generally,  that  although  in  two  or  three  cases,  as 
above  note«l,  the  commission  expressly  held  the  excuse  for  non-appeal 
to  be  sufficient'  to  entertain  jurisdiction  of  the  claim  upon  the  merits, 
and  although  in  other  cases  the  commission  did  not  expressly  dis- 
allow the  claim  on  the  ground  of  the  insufficiency  of  the  reasons  for 
non-appeal,  no  award  was  made  against  the  United  States  in  any  case 
in  which  the  claimants  had  not  pursued  their  remedy  in  the  prize  courts 
of  the  United  States  by  appeal  to  the  court  of  last  resort.  I  am  ad- 
vised that  Mr.  Commissioner  Frazer  was  of  opinion  that  nothing  short 
of  the  misfeasance  or  default  of  the  capturing  Government,  by  means 
of  which  an  appeal  was  prevented,  was  sufficient  to  excuse  the  failure 
to  appeal,  and  that  in  accordance  with  this  view  he  held  the  reasons 
assigned  in  every  case  before  the  commission  to  be  insufficient. 

The  following  cases  cover  all  the  prize  cases  not  disposed  of  by  the 
ru'iitgs  of  the  commission  on  the  question  of  non-appeal,  as  above 
stated : 


The  steamship  Dolphin;  Richard  Henry  Eustice,  No.  100,  claimant  for 
part  of  cargo  and  for  wages,  &c. 
This  vessel  was  captured  by  a  United  States  war-vessel  while  on  a 


AGENT  8   REPORT. 


93 


voyage  from  Liverpool,  ostensibly  to  Nassau,  in  the  island  of  New 
Providence.  She  was  taken  into  the  port  of  Key  West,  and  there 
libelled  in  tlie  United  States  district  ce'Mt  for  the  southern  distric't;  of 
Florida.  A  claim  was  interposed  in  that  court  on  behalf  of  William 
J.  Grazebrooke,  niercluuit  of  Liverpool,  as  the  owner  of  the  vessel. 

The  njeniorialof  the  claimant  here  alleged  that  the  prize  court  refused 
to  condemn  the  steamer  as  lawful  prize,  but  she  was,  notwithstanding, 
with  her  cargo,  taken  possession  of  by  the  United  States  Government, 
and  no  part  thereof  ever  returned  to  the  owner.  The  proofs,  however, 
showed  that  the  vessel  and  cargo  were  regularly  condenuied  in  the 
prize  court,  aiul  that  no  appeal  was  taken  from  the  jiulguient  of  that 
court.  Among  her  cargo  were  found  40  cases  containing  1)L'0  ritles, 
and  20  cases  containing  2,240  cavalry  swords,  all  enteied  upon  her 
manifest  under  the  name  of  hardware.  The  proofs  before  the  prize 
court  satislied  Judge  Marvin,  before  whom  the  trial  was  Inid,  that  the 
ultimate  destination  of  both  vessel  and  cargo  was  (Charleston  or  Wil- 
mington, both  blockaded  ports  of  the  Confederate  States;  and  he 
accordingly  decreed  condemnation  of  both  vessel  and  cargo  as  lawful 
prize.  The  proofs  in  the  prize  court  were  not  put  in  evidence  before 
the  commission,  and  the  claimant  submitted  his  case  upon  his  own 
deposition,  taken  on  notice,  in  the  course  of  which  he  refused  to  answer 
various  pertinent  questions  propounded  on  cross-examination,  touching 
his  experience  as  a  blookade-ruuner,  and  his  intentions  in  connection 
with  the  voyage  of  the  Dolphin. 

No  reasons  for  non-appeal  were  filed,  the  case  having  been  disposed  of 
on  the  merits  without  waiting  for  such  reasons. 

The  commission,  without  hearing  any  argument  on  the  part  of  the 
United  States,  unanimously  disallowed  the  claim. 


The  brig  Isabella  Thompson;  James  McDaniel,  No.  108,  claimant  for 
vessel :  Nehemiah  K.  Clements,  No.  107,  cUiimant  for  cargo. 

This  vessel  was  cai)tured  in  June,  1803,  by  a  United  States  cruiser 
on  her  return  voyage  from  Nassau,  New  Providence,  to  ILilifax,  Nova, 
Scotia,  where  she  was  owned,  having  been  chartered  by  tlie  owner, 
McUaiiiel,  to  William  Pryor  &  Sons,  of  Halifax,  agents  of  Sanders  «& 
Sons,  of  Nassau,  for  a  voyage  from  Halifax  to  Nassau  and  back  to  Hali- 
fax. The  claimant  Clements  in  his  memorial  alleged  tluit  the  vessel 
was  chartered  by  himself.  The  claimant  McDauiel  in  his  m;Mn  )rial  al- 
leged that  the  charter  was  to  Messrs.  Win.  Pryor  .li,  ^ons.  Tlie  proofs 
in  both  cases  showed  that  the  charter,  although  in  form  to  Messrs.  Pryor 
&  Sons,  was  taken  by  them  as  the  agents  of  and  for  the  benefit  of  Messrs. 
Sanders  &  Sons.  She  was  taken  by  the  captors  into  the  port  of  New 
York  and  there  libelled  in  the  United  States  district  court.  Judgment  of 
restitution  was  rendered  in  that  court,  but  without  costs  or  damages  to 
the  claimants.  (Blatchford's  Prize  Cases,  377.)  From  so  much  of  the 
decree  as  refused  costs  and  damages  the  claimants  respectively  appealed 


\\. 


i; 


94 


AMKRICAN-BRITISll    CLAIMS    COMMISSION. 


;!!' 


'<  ]■ 


i;   ,1' 

il.'i; 

HI 

to  tlie  Riiprpmo  Court  of  tlie  United  States,  wliere  the  jn(l<;me!it  of  the 
distri.it  eomt  wiis  nttinned,  the  supreme  court  sayiii.c;  that  a  ease  of  pro- 
bable eanse  was  (jlearly  made  out,  and  expressing  doubt  whether  the 
vessel  and  earj^fo  should  not  have  been  condemned  by  the  court  below 
on  tlie  evideiute  before  it.  The  {!a:w  in  the  Supreme  Court  is  rei)orted 
under  the  name  of"  TIu*  Thompson,"  (3  Wallace  Supreme  Court  Keports, 
p.  15i).)  The  evidence  showed  that  the  vessel  had  arrived  at  Nassau 
from  Halifax,  and  had  discharj^ed  her  outward  cargo.  She  then  took 
ou  board  a  car^o  of  turpentine  and  cottoti,  the  i)roduct  of  the  insurre(5- 
tionary  States,  which  she  received  in  the  harbor  from  on  board  another 
vessel,  the  Argyle,  which  had  run  the  blockade  from  Wilminj»ton,  N. 
C,  with  this  cargo,  which  she  diS(!harged  directly  upon  the  Isabella 
Thonjpsou,  having  hauled  alongside  her. 

The  claimant  Clements  allegeu  in  his  memorial  that  he  was  the  sole 
owner  of  the  cargo  which  was  purchased  by  him  at  Nnssau  ;  that  he  had 
made  an  arrangement  with  Messrs.  Martiu  &  Co.,  of  Nassau,  tliat  they 
should  have  one-half  the  cargo  when  they  paid  for  the  same,  but  that 
Martin  &  Co.  had  never  paid  for  their  half,  but  after  the  seizure  arul 
redelivery  of  the  caigoto  the  claimant,  refused  to  pay  for  their  one-half, 
aiul  the  claimant  thereby  remained  sole  owner.  In  the  course  of  the 
litigation  in  the  prize  court  this  claimant  had  several  times  stated  on 
oath  that  one-half  the  cargo  belonged  to  him  and  one-half  to  Messrs. 
Martin  &  Co.  In  his  testimony  before  the  commission  he  stated  in  effect 
that  the  cjrgo  was  shipped  by  Messrs.  Martin  &  Co.,  on  joint  account, 
and  that  after  restoration  to  himself  he  settled  with  Martin  &  Co.,  he  pay- 
ing all  expenses,  and  on  such  settlement  it  was  agreed  that  he  should 
be  personally  entitled  to  all  damages  recovered  from  the  United  States 
Government.  Martin  &  Co.  were  shown  to  have  been  actively  engaged 
in  blockade-running;  and  their  letters  found  on  board  the  Isabella 
Thompson,  to  their  correspondents  at  Halifax  and  New  York,  sufficiently 
indicated  that  the  cargo  in  question  was  run  out  by  the  Argyle  on  joint 
account  of  themselves  and  the  claimant  Clements. 

On  cross  exanjination  Clements  refused  to  answer  who  constituted  the 
firm  of  Martin  &  Co.,  and  whether  he  was  himself  a  member  of  that  firm ; 
whether  they  had  general  authority  to  make  purchases  for  and  ship- 
ments to  him,  or  only  special  authority  for  particular  purchases; 
whether  they  shi[»ped  goods  on  his  account  to  the  blockaded  ports  of 
the  insurrectioimry  States,  or  purchased  goods  in  those  ports  for  him. 
He  also  refused  to  state  more  particularly  the  terms  of  the  contract  or 
agreement  by  which  he  became  the  owner  of  Martin  &  Co.'s  half  of 
the  cargo,  and  evaded  the  question  whether  he  ever  paid  for  the  cargo 
seized  in  the  Isabella  Thompson,  and  if  so,  to  whom,  how  much,  and 
when.  He  admitted  himself  the  owner  of  the  Argyle,  the  blockade- 
runner  from  which  the  Isabella  Thompson  received  the  cargo  in  ques- 
tion. 

On  the  part  of  the  United  States  it  was  maintained  tliat  the  proofs 


AGENT  S    REPORT. 


95 


ent  of  the 
use  of  pro- 
('tlier  the 
trt  below- 
reported 
t  Reports, 
t  Xassaii 
lien  took 
insiirree- 
1  {mother 
ii<»ton,  N. 
Isabel  hi 

I  the  sole 
iit  he  had 
that  they 

but  that 
zure  and 
one-half, 
se  of  the 
tated  on 

Messrs. 

in  effect 
account, 
,  he  pay- 
e  should 
d  States 
engaged 
Isabella 
fticiently 

on  joint 

uted  the 
uit  firm ; 
id  ship- 
rchases; 
ports  of 
for  him. 
tract  or 
half  of 
le  cargo 
ich,  and 
lockade- 
in  ques- 


before  the  prize  conri,  especially  as  sn|)ported  by  the  testimony  of 
the  claimant  Clements  before  the  comMiission,  clearly  established  thut 
as  to  the  cargo  there  was  not  only  ami>le  probable  cause  to  Justify  tlie 
capture,  but  that  the  proof  was  ample  tor  its  (jondeninatiou  ;  that  the 
cargo  was  never  landed  at  Nassau,  an<l  certainly  never  became  a  i)art 
of  the  common  stock  of  that  port,  but  was  in  the  course  of  a  continu- 
ous voyage  from  the  blockaded  port  of  AVilmington  to  Halifax,  having 
been  merely  transshipi)ed  from  the  Argyle  to  the  Isabella  Thomi)son, 
without  change  of  ownership  or  of  original  destination.  That  the 
evasive,  uncandid,  and  untruthful  testimony  of  the  claimant  ClenuMits 
when  testiCying  in  his  own  behalf,  aiul  his  refusal  to  answer  on  cross- 
examitujtion  legitimate  ami  pertinent  questions,  exposed  his  claim  to 
every  possible  im|)lication  against  its  merits.  And  that  the  only  error 
committed  by  the  prize  court  was  in  adjudging  restitution  instead  of 
condemnation  of  the  cargo.  That  if  the  seizure  of  the  car  jo  was  jnstilia- 
ble,  the  seizure  and  detention  of  the  vessel  were  also  jusiifiable  to  the 
same  extent,  and  that  her  owner  could  sustain  no  claim  for  damages 
where  the  cargo  was  liable  to  condemnation  or  probable  cause  was 
found  for  its  seizure,  or  that  of  any  part  of  it. 

The  counsel  for  the  United  States  cited  The  Carl  Walter,  4  C.  Rob., 
207;  The  Eliza  Ann,  1  Hagg.,  257;  The  Thomyris,  EdwardsMleps.,  17; 
The  Ostsee,  2  Spinks,  18G;  The  Leucade,  id.,  228,  234  to  230;  3  Philli- 
more,  534,  5G5,  and  authorities  there  cited. 

Both  claims  were  unanimously  disallowed  by  the  commission. 

Thomas  Grant's  tobacco,  No.  211. 

The  claimant  in  this  case,  domiciled  at  Petersburgh,  Va.,  during  the 
war,  claimed,  among  other  matters  in  his  memorial,  $787.50,  "  for  the  loss 
of  tobacco  shipped  from  Wilmington,  N.  C,  consigned  to  Messrs.  Charles 
R.  Somerville  &  Co.,  London,  captured  by  the  United  States  vessels, 
which  tobacco  was  taken  to  New  York  and  placed  in  the  hands  of  United 
States  officials,  who  sold  it  at  a  high  price."  His  memorial  contained  no 
other  allegations  concerning  the  tobacco  or  its  capture.  On  demurrer 
by  the  United  States  the  claim  was  unanimously  disallowed. 

The  schooner  Pacifique,  Nazaire  Leuiieux,  No.  215,  claimant  for  the 
veasel ;  Harvey  &  Co.,  No.  214,  claimant  for  the  cargo. 

The  Paciflque  was  owned  at  Quebec,  Canada  East,  where  the  claim- 
ant Lemieux  resided.  She  was  chartered  to  the  claimants  Harvey  &  Co. 
for  a  round  voyage  from  Saint  John's,  Newfoundland,  to  a  port  in  the 
West  Indies ;  thence  to  Cienfuego.s,  Cuba,  and  thence  back  to  Saint  John's. 
She  sailed  from  Cienfuegos  on  the  12th  March,  1863,  on  her  alleged 
return  voyage  to  Newfoundland,  upou  which  her  proper  course  would 
have  taken  her  along  the  eastern  shore  of  Florida.  She  was  capture<l 
on  the  27th  March,  1803,  by  a  United  States  war-vessel,  off'  the  port  of 
Saiut  Mark's,  in  the  Gulf  of  Mexico,  on  the  western  shore  of  Florida,  and 


w\ 


wv 


|i  ;■:: 


iil! 


iiiii 


'   Ml 

MJ 

!    iij 

:      ^  \ 

u 


96 


AMERICAN  BRITISH    CLAIMS    COMMISSION. 


80  nciir  the  blockiided  ports  of  CodarKeys  anil  Saint  Mark's  as  to  raise 
wluit  Jinlfji'  Marvin  called  "a  very  strong  and  violent  presumption"  in 
the  mind  of  the  capturing  officer  of  a  purpose  to  break  the  blockade. 
She  was  taken  into  the  port  of  Key  West,  and  there  libelled  in  the 
United  States  district  court.  On  the  hearing  before  Judge  Marvin  judg- 
ment of  restitution  of  the  vessel  and  cargo  was  awarded  on  payment  to 
the  marshal  of  the  pilotage  and  the  costs  of  keeping  the  vessel  while  in 
port,  probable  cause  of  capture  being  certified  by  the  judge,  and  costs 
and  damages  refused  to  the  claimants. 

From  this  ju<lgment  no  appeal  was  taken  by  either  party.  The 
evidence  before  the  prize  court  was  not  produced  before  the  commission. 

Under  the  order  of  the  commission,  requiring  reasons  for  failure  to 
appeal  to  be  filed,  the  claimants  filed  an  affidavit  of  Mr.  Outerbridge, 
agent  for  the  clainiants  Harvey '&  Co.,  in  which  he  assigned  as  the 
reason  for  non-appeal  that  the  master  had  no  funds  or  credit  at  Key 
West  to  employ  counsel  to  take  an  ai)peal  from  said  decree,  or  to  furnish 
bonds  on  appeal ;  that  the  master  "believed  that  the  release  of  the 
vessel  and  cargo  imposed  on  him  the  duty  of  continuing  his  voyage  ;  " 
and  that  he  forthwith  departed  from  Key  West;  and  that  "  the  claim- 
ants believed  that  the  payn»ent  of  the  costs  imposed,  as  well  as  the 
declaration  of  probable  cause  of  capture,  forming  part  of  said  decree, 
were  within  theordinary  discretion  of  the  court  or  its  officers  and  formed 
uo  ground  of  special  exception." 

No  distinct  or  separate  ruling  was  made  by  the  commission  as  to  the 
sufficiency  of  these  reasons  for  uon-appeal,  the  question  having  been 
submitted  on  the  final  hearing  of  the  case  on  its  merits,  and  in  con- 
nection with  the  other  questions  involved  in  the  case.  Judge  Marvin, 
on  the  hearing,  after  examining  the  tt^^timony  and  comparing  the  log- 
book, came  to  the  conclusion  that, "  strange  as  it  might  seem,"  the 
case  was  one  of  honest  mistake  of  reckoning  by  the  master,  and  that  he, 
in  fact,  thought  he  was  on  the  eastern  side  of  Florida,  and  had  mistaken 
the  coast  of  Florida,  which  lay  to  the  east  of  him,  for  a  part  of  the 
Bahamas,  some  five  degrees  of  longitude  farther  to  the  east;  that  in 
fact  the  vessel  was  innocent  of  any  intent  to  break  the  blockade ;  but 
that  the  circumstances  under  which  the  vessel  was  found  fully  justified 
the  capturing  officer  in  making  the  capture,  and  warianted  his  belief 
that  the  vessel  was  actually  engaged  in  an  attempt  to  break  the 
blockade. 

On  the  part  of  the  United  States  it  was  maintained — 

1.  That  the  claimants  having  omitted  to  put  in  evidence  the  proofs 
before  the  prize  court,  those  proofs  must  be  taken  by  the  commission  as 
sufficient  to  sustain  the  judgment  of  the  prize  court. 

2.  Tliat  on  the  evidence  offered  by  the  claimants  themselves  here, 
and  on  their  letters  to  the  British  minister,  and  the  protest  of  the  master 
and  officers  of  the  schooner,  the  facts  appearing  fully  sustained  nie  con- 
clusions arrived  at  by  Judge  Marvin.    That  under  the  circumstances 


AGENTS    REPORT. 


07 


to  r.ane 
»tion"  in 
locktidc. 
I  ill  the 
'injiulj?- 
ineiit  to 
while  in 
lul  costs 

;y.  The 
jmission. 
ailiire  to 
nbridge, 
(I  as  the 
[,  at  Key 
o  furnish 
e  of  the 
royase ; " 
ho  chiini- 
sll  as  the 
d  decree, 
id  formed 

as  to  the 
Ing  beeu 
il  ill  con- 
Marvin, 
the  log- 
sem,"  the 
that  he, 
mistaken 
rt  of  the 
that  in 
iide;  bat 
Justified 
lis  belief 
reak  the 


le  proofs 
lissiou  as 

k'^es  here, 
le  piaster 
I  ttie  coa- 
mstaaces 


appoarinj?  to  the  capturing  oflicer,  he  was  jiistiliod  in  inaking  the  cap- 
ture and  tidving  the  vessel  in  for  condemnation.  That  the  capturing 
ollicer  in  such  case  did  not  stand  in  the  plaiic  of  a  jiidicMal  ollicer,  com- 
pelled to  decide  at  his  own  peril  upon  the  ultimate  liability  of  a  vessel 
to  con<lemnation  as  prize,  but  was  only  l)(»und  to  acthonestly  and  fairly 
and  upon  the  circumstances  reasonably  apparent  to  himself.  That  the 
fact  that  the  vessel  captured  was  involved  in  suspicious  circumstances, 
without  fault  on  the  part  of  her  odicers,  but  bj- an  honest  mistake,  did 
not  change  the  (piestion  as  to  the  liability  of  the  captor  to  damages  for 
wrongful  seizure. 

3.  That  the  excuse  offered  for  failure  to  appeal  from  the  Judgment  ot 
the  prize  court  was  insullicient.  That  the  master  had  power  to  bind  his 
principals  (the  owners)  for  payment  of  counsel-fees  and  for  the  security  of 
the  sureties  on  the  appeal  bond.  That  the  statute  regulating  practice 
in  the  prize  courts  then  in  force  (12  Stat,  at  Large,  700,  sec.  7)  gave  full 
authority  to  the  Judge  to  extend  the  time  for  taking  appeal ;  and  that  the 
claimants  having  made  no  application  for  such  extension  (certainly  could 
not  allege  that  it  would  not  have  been  granted  on  proper  application. 
And  that  the  second  reason  assigned  for  non-appeal  amounted  simply 
to  an  averment  that  the  master,  as  rei)resenting  the  claimants,  and  the 
claimants  themselves,  on  being  advised  by  the  master  of  tln^  facts,  did 
not  consider  that  there  was  any  just  ground  of  appeal  from  the  decree 
of  the  <;ourt. 

The  counsel  for  the  United  States  cited  3  Phillimore,  5(50,  507,  570; 
the  letter  of  Sir  William  Scott  and  Sir  John  Nicholl  to  ]\rr.  ,Iay,  iV/.,  554 ; 
the  San  Antonio,  Acton's  Kep's,  113;  the  Ostsee,  Spinks's  lliip's,  170, 
171 ;  S.  C,  9  Moore's  P.  C.  K.,  150  ;  the  George,  1  Mason,  1»0  ;  the  Leu- 
cade,  2  Spinks,  228,  234  to  230  ;  2  Kutherforth,  599. 

On  the  part  of  the  claimants  it  was  contended  that  the  case  showed 
the  vessel  out  of  her  proper  course  solely  from  the  ignorance  and  be- 
wilderment of  her  master,  in  consequence  of  thick  weather  and  of  the 
vessel  having  drifted  by  strong  currents,  unknown  to  the  master,  who 
was  innocent  of  intent  to  break  the  blockade  ;  that  these  facts  were  es- 
tabli-shed  by  her  log  and  papers,  and  would  have  satisfactorily  appeared 
to  the  captors  by  a  proper  inspection  of  the  same ;  that  the  captors, 
having  neglected  to  avail  themselves  of  the  knowledge  thus  open  to 
them  from  the  books  and  papers  of  the  vessel,  were  in  fault,  and  should 
have  been  cast  in  damages  and  costs ;  that  no  appeal  could,  by  law,  be 
taken  from  the  district  court  to  the  Supreme  Court,  the  amount  in- 
volved being  less  than  $2,000,  and  that,  if  an  appeal  could  have  been 
taken  by  law,  the  affidavit  of  Mr.  Outerbridge  sufficiently  excused  the 
failure  to  take  it. 

The  counsel  for  the  claimant  cited  the  Palmyra,  12  Wheat.,  1;  the 
ApoUon,  9  id.,  302  ;  the  case  of  the  bark  Jones  before  the  commission- 
ers under  the  convention  of  1853,  report  of  those  commissioners,  83 ; 
the  case  of  the  schooner  John  before  the  same  commissioners,  report, 
7  H 


98 


AMKRirAN-BRITISII    CLAIMS    COMMISSION. 


, 


!(■     ' 


iili;':! 


i 

i 


in 


427;  (icoifjo  TToiipliton's  case  before  tho  snuio  oornmissioiiors,  KJl ;  Mai- 
ley  r.v.  tSliattiick,  Ji  Crarich,  458;  Dana's  Wlioatoii,  4.'iS  vt ;  La  Amistad 
do  Kiies,  ")  Wheat.,  .385 ;  tlie  Amiablo  Nancy,  ."> /^/.,  51(5 ;  tlic,  stilioonor 
Liv«'Iy,  I  (Jail.,  .'{l.");  lltMUMlict's  Adai.  Jaiisdiction  and  Tiactico,  2d  cd., 
SCO.  r>SO,  ]).  .'M") ;  sec.  r»12,  p.  .'50.") ;  the  United  Spates  rs.  Ilaynes,  2  MirLean, 
I'm;  Jenks  r.v.  Lewis,  .'{  ]\Lison,  50J;  Snow  vs.  Cairuth,  1  Sprague, 
Mass.  Adin.  and  ]\far.  I'ep.,  .'>24. 

Ill  both  eases  the  claims  were  disallowed,  all  the  commissioners 
agreeing. 

The  bark  Sally  Magee ;  Charles  Coleman,  claimant,  >;o.  232. 

The  memorial  in  this  <!ase  was  filed  in  the  name  of  Charles  ('oloman, 
as  surviving  partner  of  the  firm  of  Charles  Coleman  &  Co.,  Ibitish  mer- 
chants, domiciled  in  liio  de  Janeiro  from  l-SOl  to  18G;"),  for  a  quantity 
of  coffee,  part  of  the  cargo  of  the  bark  Sally  Mag(»e,  belonging  to  Rich- 
mond, Va.,  and  owned  by  citizens  of  the  Confederate  States  there  resi- 
dent. Coleman  had  in  fact  died  about  a  week  before  the  filing  of  the 
memorial,  that  fact  being  unknown  to  the  attorneys  who  filed  the  memo- 
rial in  his  name,  but  for  the  benefit  of  the  firm  of  J^'dmond,  Davenport 
&  Co.,  as  hereinafter  sot  forth.  A  question  was  raised  as  to  the  case 
being  regularly  before  the  commission  on  account  of  the  death  of  the 
claimant  before  the  filing  of  the  memorial,  l)ut  the  commission,  in  Octo- 
ber, 1872,  ordered  that  the  administrator  of  Coleman  have  leave  to  prose- 
cute the  claim.    The  case  was  as  follows: 

Edmond,  I)aveni>ort  &  Co.,  a  firm  doing  business  at  "Richmond,  Va.) 
and  composed  of  citizens  of  that  citj',  in  18GI,  before  the  establishment 
of  the  blockade,  shipped  goods  to  the  claimant's  firm  at  Kio  de  Janeiro, 
with  written  instructions  as  to  the  investment  of  the  proceeds  in  coft'ee. 
These  written  instructions  were  not  produced;  but  the  claimants  gave 
evidence  that  the  instructions  were  in  effect  to  i)urchase  coffee  if  pro- 
curable, at  not  over  lOi  cents  per  pound,  and  ship  it  to  the  Richmond 
firm.  Coleman  &  Co.  purchased  the  coffee  at  a  price  not  accurately 
shown,  but  said  to  exceed  the  limit  given  them  by  the  Richmond 
firm  by  from  one-Lalf  a  cent  to  a  cent  per  pound,  and  shipped  it 
by  the  Sall.y  Magee,  consigned  to  Edmond,  Davenport  &  Co.,  at 
Richmond.  The  vessel  sailed  from  Rio  de  Janeiro  for  Richmond  on 
the  12th  INLiy,  18G1,  and,  as  the  claimant  alleged,  before  intelligence  of 
the  war  or  the  blockade  had  reached  Rio  de  Janeiro.  She  was  captured 
by  a  United  States  cruiser  off  the  entrance  of  Chesapeake  Bay  on  the 
2Gth  Jnne,  18G1,  taken  to  New  York,  and  there  libelled  iu  the  United 
States  district  court,  and  the  vessel  and  cargo,  including  the  coffee  in 
question,  condemned  as  enemy's  property.  (See  reportof  the  case  iu  the 
district  court,  Blatchford's  Prize  Cases,  382.)  In  the  prize  court  Messrs. 
Charles  M.  Fry  &  Co.  intervened  on  behalf  of  Coleman  &  Co.,  in 
respect  of   the   coffee  in    question,  claiming    it  as  the  property  of 


agent's  rkport. 


99 


ssiouers 


Culomnn  &  Co.  No  express  ropiuliiition  of  the  i)ar('liiisfi  by  tlie  llich- 
inoiid  linn  was  shown;  nor  did  it  appear  tliat  the  liicliinoiid  firm  svas 
advised  of  the  terms  of  the  purchase  until  after  the  capture  of  the  vessel. 
Two  members  of  that  firm  were  examined  as  witnesses  before  the  com- 
mission,  one  of  whom  testified  that,  in  view  of  all  the  eircMinisfances, 
lie  thon<jfht  his  lirni  would  have  ratified  the  purchase  if  the  vessel  ha<l 
arrived  safely  at  her  point  of  destination,  while  the  other  testified  that 
he  thoufjlit  they  would  not  have  .  atified  it.  Coleman  &  (Jo.  appealed 
from  the  decree  of  condemnation  of  the  district  (!ourt  to  the  Supremo 
Court  of  the  L'nitcd  States,  where  the  decnee  of  the  district  court  was 
ailirmed,  (3  Wall.,  451.)  The  condemnation  iu  the  district  court  and 
the  atlirmation  of  the  same  in  the  Supreme  Court  both  proceeded  upon 
the  j^round  that  the  coH'ee  was,  by  the  terms  of  the  consi;»nment,  prima 
facie  the  property  of  the  consignees,  and  that  no  aufFicient  proof  had 
been  made  of  the  terms  of  the  instructions  given  by  the  Richmond  firm 
to  Coleman  &  Co.  in  regard  to  the  purchase,  or  ot  the  violation  of  those 
instruct it>ns  by  Coleman  &  Co.  The  claim  was  prosecuted  before  the 
commission  by  Messrs.  Edmond,  Davenport  &  Co.,  at  their  own  cost 
and  for  their  own  benefit,  though  iu  the  name  of  Charles  Coleman, 
surviving  partner,  undc;  an  assignment  conveying  to  the  former  firm 
all  the  right,  title,  and  interest  of  Coleman  &  Co.  in  the  claim. 

On  the  part  of  the  United  States,  it  was  contended  that  the  condem- 
nation by  the  prize  court  was  lawful,  and  was  sustained  by  the  evidence 
before  that  court ;  that  no  sufficient  proof  was  there  made  to  rebut  the 
presumption  arising  upon  the  face  of  the  piipers,  that  the  colTeo  was  the 
property  of  the  Richmond  consignees;  that  if  the  facts  were  as  alleged, 
Coleman  &  Co.  were  bound  to  make  law  fid  proof  of  those  facts  before 
the  prize  court;  that  for  that  purpose  they  should  properly  have  applied 
for  the.  taking  of  further  proofs,  but  that  they  made  no  such  application. 
That  having  failed  to  make  such  proofs  before  the  prize  court,  they 
could  not  now  be  allowed  to  make  them  denovo  before  the  commission  ; 
thus  establishing  a  state  of  facts  different  from  that  appearing  before 
the  prize  courts.  That  even  if  such  new  proof  before  the  commissiou  were 
admissible,  the  claimant,  by  omitting  to  produce  or  account  for  the 
written  Instructions  to  Coleman  &  Co.,  had  failed  to  establish  even  here 
any  facts  showing  Coleman  &  Co.  the  owners  of  the  coffee.  That  the 
parol  evidence  as  to  the  terms  of  those  instructions  given  on  the  part 
of  the  claimant  was  inadmissible,  and  that  the  claim  being  now  prose- 
cuted for  the  sole  benefit  of  Messrs.  Edmond,  Davenport  &  Co.,  who 
were  not  British  subjects,  but  at  fJie  time  of  the  seizure  enemies  of 
the  United  States,  and  now  citizens  of  the  same,  the  court  bad 
no  jurisdiction  of  the  claim  under  the  terms  of  the  treaty.  That  the 
property  having  been  captured  and  condemned,  as  the  property  of 
Edmond,  Davenport  &  Co.,  enemies  of  the  United  States;  having  been 
bought  with  their  money  for  their  benefit;  shipped  to  them  in  good 
faith ;  captured  under  circumstances  which  made  the  capture  lawful  if 


100 


AMERICAN-HKITISH    CLAIMS    COMMISSION. 


I':l 


I    !■ 


m 


111' 


•i 


■  S,  ji 


the  property  wuh  thoirs:  tlicy  liaviiijj  att('iiiptt'<l  to  avail  tlHMiiHclvos  of 
a  tccliiiijial  ri^lit  to  ropiuliatc  tlie  owjiersliip  of  the  proixuty,  and  then 
haviii;:^'  taken  an  assi<;iirnent  of  the  chiini  for  th(!  purpose  of  reinil)ur.sin;>' 
theniselve.s  for  the  moneys  invested  on  their  behalf  in  the  same  i)roi>erty, 
and  now  prosecuting  tho  (tlaini  in  the  name  of  a  Hritish  subje(!t  wholly 
without  actual  interest  in  the  property,  tho  case  was  in  substance  one 
between  the  United  States  and  its  own  now  citizens  and  former  enemies, 
and  not  covered  by  the  si)irit  or  ecpnty  of  the  treaty,  and  was  not  such 
a  boHt(-Jhk cowtroyvrsy  between  a  subject  of  (ireat  lUitain  and  the  govern- 
ment of  the  United  States  as  the  treaty  contemplated. 

On  the  part  of  the  claimant  it  was  contended  that  the  production  of 
the  written  instructions  to  Coleman  «&  Co.  was  sufliciently  excuse«l,  and 
parol  evidence  of  their  (contents  was  therefore  i)roperly  admitted.  That 
such  i)roof  might  [iroperly  be  made  before  the  commission,  though  not 
nuule  in  the  prize  court.  That  Edinon<l,  J)avenport  &  Co.  as  assignees 
of  Coleman,  though  citizens  of  the  United  States,  were  entitled  to  a 
standing  before  the  commission,  and  quodd  this  claim  were  to  be  deemed 
British  subjects,  and  that  the  claim  might  properly  be  prosecuted  here 
by  Edinond,  Davenport  &  Co.  as  assignees  of  Coleman. 

The  claimant'.,  counsel  cited,  under  the  lasthead,llunterr.s'.  ThoUn-fed 
i^tates,  5  Teters,  17o;  Turner  vs.  The  Bank  of  North  America,  4  Uallas, 
8;  IMontalet  r.9.  IVIurray,  4Cranch,  40;  Young  r.s'.  Bryan,  ('  Wheat,  14(5; 
IMallan  r,s-.  Torrance,  9  tW.,  HST:  Evans  rs.  Gee,  11  Peters,  80;  Coti'ey  rs. 
The  Planters'  Bank,  13  How.,  187. 

The  commission  unanimously  disallowed  the  claim. 

The  Sir  William  Peel ;  Edwin  Gerard,  No.  243,  claimant  for  himself 
and  insurers  and  underwriters. 

This  case  and  the  three  following  cases,  of  the  Dashing  Wjuve,  tlie 
Volant,  and  the  Science,  were  intimately  co!inected  in  character  and 
circumstances,  and  were  argued  and  submitted  together.  The  Sir  Wil- 
liam Peel  was  captured  by  a  United  States  war-vessel  on  the  11th  Sep- 
tember, 18G3,  while  lying  at  anchor  at  the  mouth  of  the  Kio  Grande, 
the  stream  dividing  the  territories  of  the  United  States  from  those  of 
Mexico,  and  upon  which,  about  forty  miles  from  its  mouth,  lay  on  the 
right  bank  the  Mexican  port  of  Matamoras,  and  on  the  left  bank  the 
United  States  port  of  Brownsville,  then  in  possession  of  the  confederate 
forces.  The  place  at  which  she  lay  was  held  by  the  United  States  prize 
courts  to  be  within  Mexican  and  neutral  waters.  She  was  taken  by  the 
captors  into  the  port  of  New  Orleans,  there  libelled  in  the  district  court 
of  the  United  States,  and  on  the  6th  June,  1804,  a  decree  of  restitution 
was  rendered  in  that  court,  certifying  reasonable  cause  of  seizure,  and 
providing  "that  the  question  as  to  costs  and  expenses  be  reserved 
for  further  action."  From  this  decree  the  United  States  appealed  to 
the  Supreme  Court.    Subsequently,  on  the  hearing  in  the  district  court 


AGKNTS    REPORT. 


101 


of  tlio  (|ii«istioii  thus  n'seived,  the  fbllowinj^  decreo  was  miule  on  the  oil 
JiiiM!  1.S05: 

Oil  flu!  prcliiiiiiiary  trial  nf  thin  caiiso,  coiiMidfriiiu;  tliat  Ui«  jxtsilioii  nf  tin-  Sir  Wil- 
liam I'rcl,  Nvlicii  captiirt'il,  wan  a  inaftiT  of  (lonht.  and  witli  a  view  to  scf  this  (ini'Mtioii 
iit  rest,  tlic  (Miiirt  alhiwcd  tlio  caiitors  ruitiicr  pionf,  and  I'Xluiidi'd  to  tlin  claiiiiiiiits  tlio 
Hiunit  privilt'fid  iftlioy  (diimo  to  accopt  it. 

Tim  rcsiiltof  tlio  wlioiu  tcsliiiiony  satislicd  tlm  mind  of  tin-  coiiit  tlial  tin-  Sir  Wiiliain 
reel  was  cai>tiircd  wlii'ii  aiudiorrd  .south  of  tiic,  liim  dividing  I  lie  waters  of  IIk-  K'io 
(iiandc,  and  wIkmi,  tht'icforo,  slie  was  in  noiitnil  watniM.  On  that  h;''"'"><1  thiMoiir* 
del  reed  licf  ri'st  itntioii ;  hut  fiitfitaiiiinj;  ^fiavf  doiihts  as  to  thi-  ohjcct  of  iicf  voyay;i',  ho 

^lavc,  ind 1,  tliat  hut  for  this  consideration,  that  siio  was  eaptnred  in  neutral  watersi 

the,  court  should  havo  decreed  her  condemnation,  it  is  now  ordered  and  (hcreed  that 
the  costs  and  charges  cuiiHcquent  upon  the  capturu  bu  paid  by  tliu  claiiuiints,  and  that 
danuij^cH  he  refused. 

From  this  dccire  tlu'chiimiuits  appealed  to  the  Siipreine  C-oint  of  tlie 
United  States.  IJoth  ai>peals  were  heard  tojj^ether  in  the  Supreme  Court, 
and  that  court  atlirnv^''  the  Judjitnent  of  rer^titiition,  inchidiiij^  its  wr 
fuiate  of  reasonable  ciiuso  of  seizure,  rendered  June  0, 18(U,  and  re- 
versed the  decree  of  .".d  June,  l.S().">,  char^inj?  the  claimants  witii  c>)sts, 
antl  remanded  the  ase  'o  the  district  court,  with  directions  that  no 
costs  or  expenses  ue  allowed  Co  either  party  as  ajjainst  the  other.  The 
(!ase  in  the  Supreme  Court  is  reported  in  ">  Wallace,  jiayes  517  to  .".'J(>. 
Tlu.'  opinion  of  that  Court  delivered  by  Chief  Justice  Chase  is  as  follows : 

Keffularly  in  cases  ofjirize  no  ovidtMice  isadniissildeon  the  lirst  hearin<f,  excei»t  that 
wiiich  conies  from  the  ship,  either  in  the  paiiers  or  tlie  testimony  of  persons  found  on 
board. 

If  upon  this  evidence  tlio  case  is  not  sulHiMently  cli^ar  to  warrant  condemnation  or 
restitution,  opportunity  is  jjiven  by  tin;  court,  <'ithi>r  of  its  own  ac<'ord  or  upon  motion 
and  proper  grounds  shown,  to  introduce  additional  evidciuco  under  an  order  for  further 
proof. 

In  the  case  now  before  us  some  testimony  was  taken,  preparatory  to  th  )  first  heariufj, 
of  p<u'sons  not  found  on  board  the  sjiii*,  nor,  indeed,  in  any  way  connected  witli  her. 

This  evidence  was  propiirly  excluded  by  the  district  judjijo,  and  the  hisaring  took 
place  on  the  projier  proofs. 

Upon  tiiiit  hearing  au  order  for  further  proof  was  made,  allowing  the  libellants  and 
captors  on  the  cue  side,  and  the  claimants  on  the  other,  to  put  in  additional  evidence ; 
and  such  tsvidenco  was  put  in  accordingly  on  both  sides. 

The  i)reparatory  evidence  on  tiie  lirst  hearing  consisted  of  the  dciiositions  of  the 
master  of  the  ship,  the  mate,  and  one  seaman.  No  papers  were  produced,  for  none 
were  found  on  board  ;  a  circumstance  explained  by  the  statement  of  the  master,  tliat  all 
the  papers  belonging  to  the  vessel,  except  the  lighter-men's  receipts  for  the  cargo,  were 
with  the  English  consul  and  the  consignees  of  the  ship  at  ilatamoras. 

The  depositions  established  the  neutral  ownership  of  the  ship  and  cargo.  They 
provt.'d  that  the  Sir  William  Peel  was  a  liritish  merchantman  ;  that  she  had  brought 
a  general  cargo,  no  part  of  which  was  contraband,  from  Liverpool  to  Matamoras;  that 
this  cargo,  except  an  inconsiderable  portion,  had  been  delivered  to  the  consignee  at  the 
latter  port;  that  the  c(»ttou  found  on  board  was  part  of  her  return  cargo;  that  it  was 
owned  by  neutrals,  and  i.ad  a  neutral  destination  ;  and  that  the  sliip,  when  captured, 
was  in  Mexican  waters,  well  south  of  the  boundary  between  Mexico  and  Texas. 

This  proof  clearly  required  restitution.  The  order  for  further  proof  was  probably 
made  upon  the  rejected  depositions,  which,  though  inadmissible  as  evidence  for  con- 
demnation, may  have  been  allowed  to  be  used  as  atlldavits  oq  the  uiotiou  lor  the  order. 

The  further  proof,  when  taken,  waa  coufiictiug. 


I:   '!  '     r.^rr 


102 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


iiiii- 


Hi' 


*:     ;ll. 


>•  '    ii 


il'i;* 


!  •  \' 


The  weight  of  evidence,  we  think,  put  the  vessel,  at  the  time  of  capture,  in  Mexican 
waters;  but  if  tlie  sliip  or  cargo  was  enemy  property,  or  either  was  otiierwise  liiil)lo  to 
condemnation,  that  circumstance  by  itself  would  not  avail  the  claimants  in  a  pri/o 
court.  It  might  constitute  a  ground  of  claim  by  the  neutral  power,  whose  territory 
had  suffered  trespass,  for  apology  or  indemnity.  IJiit  neither  an  enemy,  nor  a  neutral 
acting  tlie  pait  of  an  enemy,  can  demand  restitution  of  captured  i)roperty  on  the  sole 
ground  of  capture  in  neutral  waters. 

We  must  therefore  look  further  into  the  case. 

There  is  some  evidence  which  justifiessnspicion.  Several  witnesses  state  facts  which 
tend  to  prove  that  the  Peel  was  in  the  employment  of  the  rebel  government,  and  that 
l)art,  at  least,  of  the  cotton  laden  upon  her  as  return  cargo  was  in  fact  rebel  property. 

There  are  statements,  on  the  other  hand,  which  make  it  probable  that  the  Ptiel  was 
in  trutli  wliat  she  professed  to  be,  a  merchant-steamer,  belonging  to  neutral  merchants, 
and  nothing  more;  that  her  cargo  was  consigned  in  good  faith  by  neutral  owners  for 
sale  at  Matamoras,  or  to  be  conveyed  across  tlie  river  and  sold  in  Texas,  as  it  miglit  law- 
fully be,  not  being  contraband  ;  that  the  cotton  was  purchased  by  neutrals  and  on  neu- 
tral acccnnt,  with  the  proceeds  of  the  cargo  or  other  money. 

In  this  conlliot  of  evidence  wo  do  not  think  ourselves  warranted  in  condemning,  or 
in  quite  excusing,  the  vessel  or  her  cargo.  We  shall,  therefore,  aflflrm  the  decree  by  the 
district  court,  and  direct  restitution,  without  costs  or  expenses  to  either  party  as  against 
the  other. 

This  opiuion  sufficiently  states  tlie  facts  of  the  case  as  appearing  by 
the  evidence  in  the  prize  court,  and  those  facts  were  not  substantially 
changed  by  any  evidence  taken  before  the  cominis.sion. 

The  claim  before  the  commission  was  prosecuted  by  Edwin  Gerard 
as  assignee  of  the  owners  of  the  vessel  and  cargo,  and  as  attorney-in- 
fact  for  the  insurers  and  underwriters,  some  one  hundred  and  fifty  in 
number.  The  vessel  and  cargo  were  fully  insured  against  capture  as 
well  as  other  lo.sses ;  and  upon  the  capture  the  owners  abandoned  ves- 
sel and  cargo  to  the  underwriters,  who  accepted  the  abandonment  and 
paid  as  for  a  total  loss.  Pending  the  case  in  the  district  court,  forty 
bales  of  cotton,  part  of  the  cargo,  were  sold  by  order  of  the  court,  and 
the  proceeds  paid  into  the  registry  of  the  court.  And,  pending  the  case 
on  appeal  in  the  Supreme  Court,  the  vessel,  her  tackle,  stores,  t&t;.,  and 
the  remainder  of  her  cargo,  having  been  api)raised  at  thesumof  $8i57,04li. 
United  States  currency,  were,  by  order  of  the  court,  delivered  to  the 
claimants  on  their  furnishing  stipulations  in  the  said  appraised  value 
with  security.  The  claimants  claimed  the  sum  of  £35,314.10.9,  the  sum 
of  the  amounts  paid  by  the  insurers  to  the  assured  less  the  net  salvage 
obtained  by  the  sale  of  the  vessel  and  cargo,  and  the  further  sum  of 
$309,000,  demurrage  from  the  11th  September,  18G3.  to  the  loth  Sep- 
tember, 1864,  besides  interest  on  both  said  sums. 

The  counsel  for  the  claimant  filed,  in  No.  391,  a  general  argument 
applicable  to  the  cases  of  the  Sir  William  Peel,  the  Dashing  Wave,  the 
Volant,  the  Science,  and  the  Gezieua  Heligonda.  In  this  argument  he 
maintained  that  the  liio  Grande  being  the  common  boundary  between 
Mexico  at  peace  and  Texas  at  war  with  the  United  States,  and  the  naviga- 
tion of  the  river  being,  by  the  law  of  nations  as  well  as  by  the  treaty  of 
Guadalupe  Uidalgo,  free  and  common  to  the  citizens  of  both  republics,  the 


AGENTS    REPORT. 


103 


United  States  could  not  l.iwfuUy  blockade  that  river  so  as  to  interfere  with 
the  free  ingress  and  ogress  of  neutral  vessels  engaged  in  trade  with  Mata- 
uioras,  or  with  the  right  of  such  vessels  to  lie  at  anchor  in  the  roadstead 
at  the  mouth  of  the  liio  Grande,  wliile  engaged  in  lawfully  discharging 
or  receiving  cargoes  ou  neutral  account  through  the  custom-house  at 
Matanioras,  or  so  as  to  interfere  with  inland  trade  carried  ou  across  the 
Rio  Grande,  from  Mexico  to  Texas  or  from  Texas  to  Mexico.  Tliat  the 
British  trade  with  Matamoras  was  a  legitimate  trade  according  to 
established  principles  of  public  law.  That  these  doctrines  were  fully  recog- 
nized bytheSupreiue  Courtof  the  United  States  in  the  case  of  the  Peter- 
hoff",  (5  Wallace,  p.  28;)  and  by  the  courts  of  the  United  States  in  other 
cases,  notably  that  of  the  Labuan  in  the  district  court  of  the  southern 
district  of  New  Yorlc.  That  it  had  also  been  fully  recognized  by  the 
Secretary  of  State  of  the  United  States,  in  the  diplomatic  correspond- 
ence with  the  Dritish  legation,  concerning  the  cases  of  the  Labuan,  the 
Magicienne,  the  reterhoff,  the  Sir  William  Peel,  and  other  cases;  and 
by  the  legislative  authorities  of  the  same  in  ai)propriations  for  pa^  meut 
of  the  awards  in  the  cases  of  the  Labuan,  &c. 

That,notwithstaiuling  the  recognition  by  tlie  courts  and  executive  and 
legislative  authorities  of  the  United  States  of  these  piiiu;iples,  in  practice 
they  had  been  disregarded,  and  British  merchant- vessels,  whether  found 
on  thehigh  seas  and  destined  to  the  mouth  of  the  KioGrande^  with  cargoes 
consigned  to  Matamoras,  or  anchored  olf  the  month  of  the  river  and  en- 
gaged in  good  faith  in  tlie  dischargeof  neutral  cargoes  for  Matamoras,  and 
in  taking  ou  board  cargoes  purchased  at  that  port  on  neutral  account, 
had  been  subjected  to  capture  andadjndication  as  maritime  prize. 

That  these  captures  had  been  the  subject  of  earnest  but  temperate  re- 
monstrance on  the  part  of  Her  Majesty's  government,  and  were  regarded 
as  violations  of  the  just  maritime  rights  of  Great  Britain,  and  as  as- 
sumptions of  belligerent  power  not  warranted  by  the  law  of  nations. 

That  the  claims. arising  out  of  these  captures  were  among  the  most 
important  in  the  contemi)lation  of  Her  Majesty's  government  in  the  es- 
tablishment of  the  Joint  High  Commission,  and  by  that  commission,  in 
the  provisions  of  articles  12  to  17  of  the  treaty  providitig  for  the  estab- 
lishment and  conduct  of  this  commission.  That  this  commission  had  full 
jurisdiction  of  the  claims  in  question,  and  to  review  and  overrule  the  final 
judgments  of  the  prize  courts  of  last  resort  of  the  United  States. 

That  by  the  terms  of  the  treaty,  and  of  the  "  solemn  declaration  "  sub- 
scribed by  the  commissioners  pursuant  to  the  provisions  of  the  treaty, 
they  were  to  decide  each  and  all  of  the  claims  "according  to  justice 
and  equity."  That  this  provision  gave  to  the  present  commission  a 
broader  and  more  comprehensive  power  than  was  given  by  the  7tli  article 
of  the  treaty  of  1794  between  the  United  States  and  Great  Britain  (8 
Stat,  at  L.,  121)  to  the  commission  provided  for  by  that  article,  which  was 
required  to  decide  the  claims  referred  to  it  according  to  "justice,  equity, 
and  the  laws  of  nations."    That  the  omission  of  the  last-named  element 


1  !  ;  ^ 


1 

i  ii 

,i    i  3 


■J 


Ifi 


m   ^ 


104 


AMERICAN-BRITISH    CLAIMS   COMMISSION. 


of  the  prescribed  rule  of  conduct  from  the  present  treaty  was  significant. 
That  under  the  present  treaty  the  judguieuts  of  the  American  prize 
tribunals  were  to  be  tested  in  each  case  hj  this  commission  accord- 
ing to  the  principles  of  "justice  and  equity"  only.  That  "whether 
the  law  of  nations  justifies  those  decisions  or  not,  unless  they  are 
also  justified  in  the  conscientious  judgment  of  the  commissioners 
by  justice  and  equity,  the  compensation  which  they  fail  to  give  must  be 
awarded  to  the  parties."  That  "  the  inquiry  is  not  limited  to  the  questiou 
whether  the  law  of  nations  entitled  the  claimants  to  compensation,  but 
extends  beyond  that  narrow  range,  and  its  broad  scope  is  whether  the 
parties  are  equitably  entitled,  under  .all  the  circumstances  surrounding 
the  cases,  to  receive  Indemnification  for  their  losses."  That  it  was  the 
intention  of  the  framers  of  the  treaty  to  confer  upon  this  commission  "a 
more  extensive  jurisdiction,  and  greater  power  to  do  justice  than  was 
exercisable  by  the  prize  courts  of  the  United  States  <leciding  according 
to  the  law  of  nations."  That  the  technical  rule  of  tlie  prize  courts,  that 
"probable  cause"  not  merely  excuses,  but  in  some  cases  justifies,  a  cap- 
ture, is  a  hard  rule, "  admitted  to  be  opposed  to  the  fundamental  ideas  of 
justice  and  equity,'' ;;nd  "  only  to  be  justified  upon  grounds  which  justify 
the  extieme  severity  of  the  other  operations  ot  war."  That  therefore  this 
commission  was  not  bound  to  refuse  damages  in  cases  of  restitution  to 
the  claimants,  even  "if  they  should  think  that  the  appellate  prize  court 
was  warranted  in  its  decision  that  there  existed,  in  the  sense  of  the 
Xirize  law,  probable  cause  of  capture." 

That  if;  however,  it  should  be  held  that  the  only  inquiry  to  be  instituted 
by  the  commission  in  such  cases  is,  "whether  there  were  such  reasonable- 
grounds  of  suspicion  as  constitute  what  is  technically  called  i)robable 
cause  of  capture,"  the  commissioners  should  nevertheless  adjudicate  ac- 
cording to  their  own  judgment  of  the  facts  and  the  law  constituting  the 
foundation  of  probable  cause, "  unembarrassed  by  the  special  and  techni- 
cal rules  of  the  prize  code."  That  though  the  commission  is  not  there- 
fore bound  by  rhe  principles  held  by  the  prize  courts  in  their  adjudica- 
tions, but  has  a  larger  and  more  equitable  jurisdiction,  yet  the  decisions 
of  prize  courts  of  the  highest  authority  have  established  the  duty  of 
condemning  captors  in  costs  and  damages  where  they  have  unjustly  in- 
terfered with  the  operation  of  lawful  neutral  commerce.  In  this  connec- 
tion the  counsel  cited  the  cases  of  the  Elizabeth,  1  Acton,  10;  the  Ostsee, 
9  JMoore's  P.  C.  II.,  150 ;  the  Gerasimo,  11  id.,  88  ;   the  ^Newport,  id,  187. 

In  answer  to  these  propositions  in  the  general  argument  the  counsel 
for  the  United  States  fully  admitted  the  propositions  as  held  and  recog- 
nized by  the  judicial,  executive,  and  legislative  authorities  of  the  United 
States,  that  the  bona-Jiilc  trade  with  Matamoras  was  a  legitimate  trade; 
that  the  United  States  could  not  lawfully  blockade  the  mouth  of  the 
Kio  Grande  or  the  port  of  Matamoras,  or  any  other  Mexican  port,  nor 
interfere  with  the  legitimate  ingress  or  egress  of  neutral  vessels  en- 
gaged in  trade  with  Matamoras,  or  with  the  right  of  such  vessels  to  lie 


agent's  report. 


105 


tecbiii- 
there- 
lulica- 
;i.sioiis 

iliity  of 

stly  iu- 
onnec- 

Ostsoe, 
(I  187. 
ouusel 
recog- 

Uuited 
trade ; 
of  the 
't,  nor 
els  eii- 
to  lie 


at  anclior  in  the  roadstead  at  the  mouth  of  the  Rio  Grande  while  en- 
gaged in  tlie  bona-Jide  discharge  or  receiving  of  neutral  cargoes  for  or 
from  that  i)ort. 

lie  denied  that  in  practice  the  United  States  had  violated  those  prin- 
ciples or  undertaken  to  assert  rights  inconsistent  with  them,  but  main- 
tained that,  on  the  contrary,  the  State  Department  of  the  United  States, 
in  its  diplomatic  correspondence,  had  recognized  their  validity;  insist- 
ing only  that  the  question  of  the  application  of  these  principles  to  the 
facts  of  each  particular  case  was  to  be  determined  by  the  regular  prize 
tribunals,  which  might  be  safely  trusted  to  do  entire  justice  in  every 
case. 

That  the  decisions  of  those  courts  in  the  various  cases  referred  to 
by  the  counsel  for  the  claimant,  fully  recognized  those  princii)les  and 
applied  them  to  the  facts  ai>pearing  in  each  case;  and  that  in  the  dis- 
position not  only  of  those  cases,  but  generally  of  all  the  prize  cases  aris- 
ing during  the  war,  those  courts  had  carefully  adhered  to  the  piinciples 
of  international  law  as  recognized  in  the  prize  courts  of  all  civilized  coun- 
tries, ami  had  extended  to  neutral  vessels  and  cargoes  a  degree  of  pro- 
tection, to  say  the  least,  quite  as  ample  and  complete  as  tliat  aflorded 
by  the [)rize  courts  of  Great  Britain,  under  the leiirned and  widely  known 
and  recognized  <lecisions  of  Sir  William  Scotu  and  his  successors  in 
those  courts. 

lie  admitted  fully  the  Jurisdiction  of  the  commission,  and  their  power 
and  duty  under  the  treaty  to  review  the  final  jndgnuuits  of  the  prize 
courts  of  ultimate  resort  of  the  respective  nations,  as  not  coiu;lusive 
upon  the  resj^'ctive  governments,  which  might  intervene  on  behalf  of 
tlieir  subjects  against  the  judgments  of  those  courts,  such  Jurisdiction 
having  been  long  since  fully  established  bj'  the  direct  decision  of  the 
commission  u])on  that  question,  and  not  having  since  been  disputed. 

As  to  the  rules  and  principles  by  which  the  commission  were  to  bo 
governe<l  in  their  decisions  upon  these  cases,  he  maintained  that  the  rule 
prescribed  by  tiie  treaty,  that  the  commissioners  should  "  impartially  and 
carefully  examine  and  decide  to  the  best  of  their  judgment,  and  accord- 
ing to  justice  and  equity,"'  had  in  no  respect  abolished  or  changed  those 
well-settled  principles,  in  accordance  with  which  the  tribunals  of  the 
civilized  world  have  been  accustomed  to  decide  upon  the  validity  of  cap- 
tures and  the  respective  rights  of  belligerents  and  neutrals  in  relation  to 
them.  That  "Justice  and  equity  "  were  not  to  be  attained  by  a  disregard 
of  Judicial  precedents  and  established  principles  of  judiciial  proceeding. 

That  to  adopt  the  doctrine  propounded  by  the  counsel  for  the  claimant 
was  to  substitute  the  mere  fancy  or  caprice  of  a  tribunal  acting  without 
guidance  or  authority,  for  those  sound  rules  established  ami  followed  by 
judicial  tribunals,  in  the  light  of  the  learning  and  experience  of  ages,  for 
the  very  furtherance  of  "justice  and  equity."  That  true  "justice  and 
equity"  are  recognized  by  all  Judicial  tribunals,  municipal  or  interna- 
tional, as  attainable  only  by  well-detiued  and  settled  rules  and  i)riQci« 


:  Apr 


U 


IM 


^ 


m\ 


m 


"^T^ 


■mnlittrW 


^^W  :.'\ 


llf 


':ii: 


n 


jlilf ! 


i  < 


i'l 


106 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


plep  of  geiieml  application.  That  if  tliis  idea  is  lo.stslj>htof,  substantial 
justice  as  well  as  substantial  equity  is  at  an  end ;  and  the  rij;ht  s  of  parties 
are  committed  to  the  absolute  and  uncontrolled  will  and  caprice  of  the 
judicial  ollicer,  instead  of  the  protection  of  the  law. 

Thiit  while,  therefore,  the  right  of  th  ;  commission  to  sit  in  Judgment 
upon  the  validity  and  correctness  of  the  judgments  of  th(i  prize  courts 
of  the  United  States  upon  these  cases  is  not  now  questioned;  such  valid- 
ity and  correctness  are  to  be  determined  only  in  accordance  with  the  set- 
tled principles  of  [)rize  law,  as  recognized  by  the  two  countries. 

That  in  reviewing  the  judgments  of  the  highest  ai)pellate  courts  of 
either  of  the  two  coutktries,  high  contracting  parties  to  the  treaty,  the 
high  reputation  of  those  courts  respectively,  the  weight  uniformly  given 
to  the  decisions  of  each  by  the  other,  and  the  rules  of  international  com- 
ity and  mutual  respect,  dictate  that  such  judgments  are  not  to  be  rashly 
or  hastily  overruled  or  reversed;  but  only  on  a  clear  showing  of  a  viola- 
tion of  the  rules  of  international  law  in  re  miniinc  dubUi.  That  the 
question  to  be  decided  in  these  cases  is  whether  injustice  has  been  done 
to  the  subjects  of  Her  Britannic  Majesty  by  the  judicial  tribunals  of  the 
United  States;  and  that  the  commission  certainly  cannot  And  that  such 
injustice  has  been  done,  unless  theyiind  that  the  well-settled  principles 
of  international  law  have  been  violated  by  those  tribunals. 

In  answer  to  the  proposition  of  the  claimant's  counsel,  that  the  rule  of 
the  prize  courts  disallowing  damages  to  the  claimant  where  "  probable 
cause"  appears  for  the  capture,  is  one  of  extreme  severity  as  against 
the  neutral  trader,  "  opposed  to  the  fundamental  ideas  of  justice  and 
equity,"  and  "  a  hard  rule,  admitted  to  be  such  by  all  writers  on  the 
law  of  nations,"  the  counsel  for  the  United  States  cited  the  language 
of  Dr.  Lushingtou,  in  the  case  of  the  Leucade,  (2  Spinks,  236,)  as  fol- 
lows: 

Lord  Sto%vcll  adininistorod  the  prize  law  on  groat  and  comprehensive  principles.  His 
object  WU8  tliat,  on  th;)  whole,  eqnaljnstieo  should  bo  done  to  the  ri;;li^s  of  the  bellig- 
erent and  the  justclaiiasof  neutral  nations;  but  ho  did  not  seek  in  eaeli  particular  caso 
to  do  the  most  perfect  justice.  Many  passages  ia  his  judgments  might  he  cited  to  show 
this;  whereby  ho  declared  that,  though  there  might  ho  hardships  in  particular  cases, 
both  to  captors  and  especially  neutrals,  yet,  on  the  whole,  the  balance  w  •  ""  favor  Of 
the  neutral  rather  than  agiiinst  him.  Lord  Stowell  nsod  so  say,  though  i)lock:ade  was 
u  hardship  on  a  neutral,  and  the  right  of  search  was  a  hardship  on  a  neutral,  yet  it 
was  to  be  recollected  the  whole  trade  was  always  open  to  them — the  carrying  trade  in 
time  of  war.  He  used  always  to  say,  and  rely  greatly  on  that  rule  of  law,  that,  in  the 
first  instance,  the  ease  should  be  heard  ou  the  evidence  of  the  claimants  themselvja, 
namely,  the  ship's  papers  and  depositions. 

In  the  case  of  the  Diligentia,  (1  Dods.,  404,)  where  the  captors  complained  of  what 
Lord  Stowell  was  about  to  do,  Lord  Stowell  made  tha  same  answer;  ho  told  them, 
though  they  might  complain  in  particular  instances,  yet  ho  mnst  adhere  to  the  general 
principle,  though  the  consecjnences  might  press  hard  upon  them.  Now,  no  person  more 
readily  acknowledged  the  truth  of  the  principle,  that  a  claimant  should  be  indemnitied 
for  a  capture  made  without  probable  cause,  than  Lord  Stowell ;  no  one  more  powerfully 
manifested  it ;  but  that  will  necessarily  presuppose  that  the  court  is  in  possession  of 
the  truth. 


agent's  report. 


107 


It  iH  oqnally  contrary  to  common  justice  that  a  cantor  should  bo  mulcted  in  costs 
aud  daiiia.<?!)s  whoro  ho  has  faithfully  porfonnud  his  duty,  and  had,  in  truth,  adi'iiuato 
cause  for  the  seizure.  Yet  this  cause  of  seizure  mijjht  not  apimar  on  tlie  face  of  the 
diipositiiHis  and  sliip's  papiM's.  Sj  it  miglit  he  iu  blockade  casiis,  and  in  numerous 
others  wliich  miirlit  be  stated. 

Ill  tho  case  of  the  Sir  Williain  Peel  the  following  additional  points 
Avere  made  on  behalf  of  the  United  States: 

1.  Tiiat  the  vessel  and  cargo  not  having  been  charged  with  costs  un- 
der the  linal  decree  of  the  Supreme  Court,  the  only  question  before  the 
commission  was  as  to  the  right  of  the  owners  to  damages;  that  the 
claimants  were  in  no  position  to  make  such  claim  before  the  commission  ; 
that  any  right  to  damages  in  the  prize  courts  was  barred  by  the  first 
decree  of  the  district  court  of  (»th  June,  1801,  which  adjudged  reason- 
able cause  of  seizure,  and  that  from  this  decree  or  from  any  i)art  of  it 
the  claimants  had  never  appealed;  that  the  "  (juestion  as  to  costs  and 
expenses"  reserved  by  that  decree  was  plainly  the  question  only  whether 
costs  and  expenses  should  be  allowed  against  the  claimants,  tlieir  right 
to  claim  costs  and  expenses  against  the  captors  being  barred  by  the 
certificate  of  "  reasonable  cause  of  seizure"  contained  in  the  same  decree; 
that  tiie  claimants,  having  failed  to  appeal  from  so  much  of  this  decree 
as  certified  reasonable  cause  of  seizure,  must  be  considered,  in  the  lan- 
guage of  the  letter  of  Sir  William  Scott  and  Dr.  NichoU  to  Mr  Jay,  (3 
Phillimore,  554,)  to  have  "acknowledged  the  justice  of  the  senten<;e  in 
that  respect,"  and  that  within  the  rule  of  practice  already  settletl  by 
the  commission  the  claimants,  having  neither  appealed  nor  rendered  any 
reason  for  not  having  appealed,  their  claim  must  be  disallowed;  that 
the  only  effect  of  the  second  decree  of  the  district  court  of  3d  June,  18G5, 
from  which  the  claimants  did  appeal,  was  to  charge  the  claimants  with 
the  costs  and  charges  of  the  captors,  and  that  on  their  api)eal  from  this 
decree  they  had  had  full  relief  by  the  judgment  of  the  Supreme  Court ; 
that  it  ha<l  never  been  possible  for  the  Supreme  Court  to  award  damages 
in  favor  of  the  claimant  had  they  been  so  disposed,  such  damages  being 
barred  by  the  certificate  of  probable  cause  in  the  first  decree  of  Gth 
June,  1804,  from  which  the  claimants  had  not  appealed  ;  that  the  claim- 
ants had  therefore  no  standing  before  the  commission  to  claim  dam- 
ages.    - 

2.  That  the  proofs  before  the  prize  court  fully  sustained  the  finding 
of  that  court  of  probable  cause ;  and  that  the  depositions  of  Clark  and 
Haggard,  taken  in  the  district  court,  but  rejected  by  that  court  on  the 
purely  artificial  and  technical  rule  that  such  evidence  must  come  in  the 
first  instance  from  the  vessel  herself  and  those  on  board  of  her,  were 
here  competent  evidence  under  the  terras  of  the  treaty,  and  entitled  to 
be  weighed  by  the  commission  without  regard  to  such  artificial  rule  of 
exclusion ;  aud  that  those  depositions  not  only  greatly  strengthened 
the  ca.se  made  before  the  prize  court  as  one  of  probable  cause,  but  in  con- 
nection with  the  other  proofs  would  have  amply  warranted  a  decree  of 
condemnation. 


mu'\ 


rmn 


mMU 


I"  i    i::i' 


,!:■'[ 


108 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


3.  Tliat  the  fact  that  the  vessel  was  taken  in  neutral  waters,  in  no 
respect  chanjied  the  case  as  to  the  respective  rights  of  captors  and 
claimants.  That  in  such  case  it  was  only  the  neutral  power  whose  wa- 
ters had  been  violated  that  had  cause  of  complaint;  and  such  power 
ou\y  could  be  heard  to  raise  the  question  of  violation  of  her  waters. 
That  if  the  United  States  by  this  capture  had  violated  any  rights  of 
Mexico,  that  was  a  question  to  be  settled  between  the  United  States 
and  Mexico.  That  so  far  as  the  questions  between  these  claimants 
and  the  United  States  were  concerned,  the  case  stood  in  all  respects 
the  same  as  if  the  vessel  had  been  captured  upon  the  high  soas. 

Ih  support  of  this  point  the  counsel  of  the  United  States  cited  the  Puris- 
sinia  Coucepcion,  G  Kob.,  45 ;  the  Etrusco,  3  id.,  31  ^  the  Twee  Gebroe- 
ders,  id.,  1G2 ;  the  Eliza  Anne,  1  Dodson,  244  ;  the  Diligentia,  id.,  412  ; 
the  Anne,  3  Wheat.,  447;  2  Twiss,  448;  the  Anna,  5  Kob.,  373;  the 
Vrow  Anna  Catherina,  id.,  15. 

4.  That  by  sibandonment,  acceptance  of  the  same,  and  payment  as  for 
a  total  loss,  the  entire  right  to  any  and  all  reclamation  for  <laniages  or  for 
the  proceeds  of  the  vessel  passed  from  the  owners  of  the  ship  and  cargo 
to  the  insurers,  and  this  irrespective  of  the  question  of  the  illegality  of 
the  contract  of  insurance,  the  contract  being  an  executed  one  by  the  volun- 
tary act  of  the  parties.  That  these  i  usurers  were  not  to  be  taken  as  parties 
to  the  memorial,  which  was  that  of  Mr.  Gerard.  That  Gerard  himself  had 
derived  by  his  assignment  from  the  owners  no  title,  their  claims  having 
vested  in  the  insurers.  And  that  if  the  assignment  to  him  would  otherwise 
have  conveyed  any  interest,  it  was  void  as  acharapertous  contract  b3'  which 
Gerard,  an  attorney,  without  any  previous  interest  in  the  transaction, 
had  i)urchased  the  claim  as  a  matter  of  speculation  and  for  the  purpose 
of  its  prosecution  against  the  United  States.  That  by  the  law  of  Eng- 
land, the  purchase  of  a  chose  in  action  by  an  attorney  for  the  purpose 
of  prosecution  was  illegal;  that  the  same  rule  prevailed  in  most,  if  not 
all,  of  the  United  States;  and  that  in  practice  it  ought  to  prevail  in 
international  law.  That  such  champertous  purchases  of  claims,  void  by 
the  common  law  of  both  countries,  should  not  be  recognized  as  lawful 
transactions,  or  be  permitted  as  the  basis  of  claims  to  be  prosecuted  by 
one  of  those  governments  against  the  other. 

5.  That  the  contracts  of  insurance  by  these  insurers  with  the  assured 
were  deliberate  contracts  to  indemnify  British  subjects  for  the  conse- 
quences of  attempted  violation  of  the  belligerent  rights  of  the  United 
States ;  that  such  contracts,  when  sought  to  be  enforced  in  the  courts  of 
the  United  States,  would  be  held  void  by  those  courts;  that  like  con- 
tracts, in  relation  to  attempted  violation  of  the  belligerent  rights  of 
Great  Britain,  if  prosecuted  in  the  courts  of  that  kingdom,  would  be 
held  vo'd  by  her  courts ;  that,  therefore,  in  an  international  tribunal 
constituted  by  solemn  treaty  between  the  two  governments,  the  comity 
of  nations  and  a  i)roper  regard  by  one  friendly  government  of  the 
rights  of  another  should  preclude  the  admissibility  of  such  claims.    That 


iML 


agent's  report. 


109 


these  contracts  of  insuranco  were  distiiiguisliable  from  "  war  risks" 
recognized  by  all  nations  as  legitimate  subjects  of  insurance,  and  such 
as  were  dis(uissed  among;  the  American  claims  before  the  tribunal  at 
(Geneva;  those  were  assurances  of  the  merchant-vessels  of  a  belliger- 
ent against  capture  by  their  enemy,  and  such  as  are  recognized  in  all  wars 
of  maritime  nations  as  a  permissible  and  necessary  means  to  the  pres- 
ervation of  any  commerce  whatever  to  a  belligerent;  but  these  are 
deliberate  contracts  to  indemnity  a  neutral  who,  by  n.irefully  excluding 
the  "  free  from  cai)ture"  clause,  admits  that  he  is  eng  ged  in  an  attempt 
to  violate  the  belligerent  rights  of  a  friendly  nation.  That  though  the 
violation  of  blockade  by  a  neutral  is  not  held  by  international  law  to 
be  strictly  a  crime,  it  is  an  unfriendly  act,  prejudicial  to  the  character  and 
interests  of  the  neutral  government  of  which  the  violator  is  a  citizen,  and 
to  her  honest  and  legitimate  traders,  and  calculated  to  promote  discord 
and  hostility  between  friendly  nations.  That  a  contract  to  indemnify  the 
citizen  of  a  neutral  government  against  the  lawful  consecpiences  of  his 
own  wrongful  act  against  a  friendly  government,  should  never  be  made 
a  ground  of  reclamation  by  the  government  of  the  wrong-doer  against 
the  injured  government,  nor  be  countenanced  by  an  international  tribu- 
nal organized  as  a  means  of  amicable  settlement  between  two  such 
governments. 

On  the  part  of  the  claimants  it  was  contended  in  answer  that  the 
Supreme  Courf-  of  the  United  States  had  in  effect  passed  upon  all  the 
questions  involved  in  the  prize  court,  and  had  finally  adjudged  that  the 
claimants  should  not  have  damages  against  the  captors ;  ami  had  deter- 
mined that  the  fact  of  the  capture  having  taken  pla(!e  in  the  waters  of 
Mexico,  a  neutral  and  friendly  nation,  did  not  make  the  capture  a  wrong- 
fnl  one  as  between  the  captors  and  the  claimants,  ^Mexico  not  having 
intervened.  That  on  the  proofs  in  the  case  there  were  no  such  (jircum- 
stances  of  suspicion  as  to  afford  probable  cause  of  capture  within  the 
doctrines  of  the  prize  courts.  That  if  such  probable  cause  within  the 
rales  of  those  courts  existed,  it  was  plain,  from  the  proofs  before  the 
commission,  that  actual  injustice  had  been  done  to  the  owners  of  the 
vessel  and  cargo ;  that  the  vessel  was  engaged  in  a  legitimate  commerce ; 
and  that,  according  to  justice  and  equity,  the  claimants  should  be  reim- 
bursed  for  the  losses  in  consequence  of  the  capture  ultimately  adjudged 
a  wrongful  one,  even  though  the  capture  w  ere  held  excused  by  the  doc- 
trine of  probable  cause  under  pri^e  law.  That  the  capture  of  the  vessel 
within  the  neutral  waters  of  Mexico  was  in  violation  of  international 
law,  and  absolutely  illegal  and  void.  That  the  doctrines  of  the  priza 
courts  that  such  a  capture  could  only  be  questioned  by  the  government 
whose  territory  had  been  violated,  appliel  only  to  the  case  of  an  enemy 
ship  captured  in  neutral  waters  and  not  to  the  case  of  a  neutral  vessel 
so  captured.  That,  even  if  that  doctrine  applied  in  the  last  named  case, 
it  was  only  as  a  technical  rule  of  the  prize  courts  requiring  an  interven- 
tion there  by  the  government  wbose  territory  b  d  been  violated,  and 


mrr 


110 


AMERICAN-BRITISH    CLAIMS    COJIMISSION. 


was  not  applieablo  in  the  case  of  an  international  tiilmnal,  which  should 
be  controllcil  by  tlie  consideration  that  the  capture  was  an  illegal  one 
under  iiiteruational  law. 

The  counsel  lor  the  claimant  cited  Dana's  Wheaton,  §§  171,  420,  428, 
429,  430;  the  Vrow  Anna  Catherina,  o  Hob.,  IS;  Lawrence's  Wheaton, 
215  n.,  715;  Wlieaton  on  Captures,  (api)endix,)  341;  the  Anne,  3  Wheat. 
Hep.,  435;  the  Richmond,  9  Crauch,  102;  the  Peterhott',  5  Wall.,  28; 
the  Bermuda,  3  Wall.,  557. 

The  counsel  lor  the  claimant  also  maintained  that  the  insurers  and 
underwriters  were  to  be  deemed  parties  to  the  memorial  by  Mr.  Gerard, 
as  their  attorney  in  fact;  that  the  assijjfnment  to  Gerard  was  a  valid 
one;  and  that  the  contracts  of  insurance  were  also  valid  and  entitled 
to  recognition  and  protection  under  international  law. 

The  commission  (Mr.  Commissioner  Frajcer  dissenting)  gave  the  claim- 
ants an  award  for  $272,920.  I  am  advised  that  the  award  was  placid 
by  the  majority  of  the  commission  on  the  ground  that  the  capture  within 
the  neutral  waters  of  Mexico  was  absolutely  illegal  and  void ;  and  that 
the  claimants  were  entitled  to  make  reclamation  on  that  ground,  irre- 
spective of  any  question  of  complaint  or  intervention  on  the  part  of 
Mexico. 

In  this  case,  in  connection  with  the  cases  of  the  Science,  the  Volant, 
and  the  Dashing  Wave,  Mr.  Commissioner  Frazer  read  u  written  opin- 
ioo,  which  will  be  found  in  the  appendix,  M. 


i-i;'  s 


li 


:     ■ 


;■!■ 
I 


II  \ 


■:.! 


J!  S 


The  brig  Dashing  Wave;  Charles  Le  Quesne  et  al,  No.  305,  claimants 
for  vessel;  Edwin  Gerard,  No.  244;  Simpson  &  Pitman,  No.  39();  Mc- 
Dowell &  Halliday,  No.  397;  the  Thames  &  ]Mersey  Insurance  Company, 
(limited,)  No.  427;  and  the  British  and  Foreign  Marine  Insurance  Com- 
pany (limited)  et  al.,  No.  428,  claimants  for  cargo. 

This  vessel  was  captured  while  at  anchor  off  the  mouth  of  the  Ilio 
Grande,  on  the  5th  November,  1803;  was  taken  into  the  port  of  New 
Orleans  and  there  libelled  in  the  United  States  district  court.  A  decree 
was  made  in  that  court,  16th  June,  1804,  adjudging  restitution  of  the 
vessel  to  the  claimants;  from  which  decree  the  United  States  appealed 
to  the  Supreme  Court.  Further  proceedings  were  had  iu  the  district 
court  on  the  question  of  costs  and  damages  ;  and,  on  the  3d  June,  1865, 
a  decree  was  made  adjudging  that  the  costs  .and  charges  consequent 
upon  the  capture  be  paid  by  the  claimants,  and  that  damages  be  refused 
to  them. 

From  this  decree  the  claimants  appealed  to  the  Supreme  Court.  The 
Supreme  Court  affirmed  the  decree  of  the  district  court  restoring  the 
vessel  and  cargo ;  but  directed  that  the  costs  and  expenses  consequent 
upon  the  capture  be  rateably  apportioned  between  the  vessel  and  the 
shipment  of  coin  hereinafter  named ;  and  that  the  residue  of  the  cargo 
be  exempted  from  contribution.    The  district  court  determined,  upoii  the 


agent's  report. 


Ill 


lih  slionid 
Ic^iiil  one 


42G,  428, 
kV  ilea  ton, 
aWhont. 
Villi.,  28 ; 

[rers  and 

.  Gerard, 

s  a  valid 

entitled 

lie  claini- 
LS  i)lacLid 
re  within 
and  that 
ind,  irre- 
3  part  ot 

»  Volant, 
ten  opin- 


1  aim  ants 
39(5;  Mc- 
ompany, 
ace  Com- 

tlie  Kio 
:  of  New 
A.  decree 
m  of  the 
ijjpealed 
I  district 
ne,  18G5, 
[isequent 
3  refused 

rt.  The 
ring  the 
isequent 
and  the 
he  cargo 
upoji  the 


proofs,  that  the  vessel  when  captured  was  anchored  south  of  the  line  divid- 
ing the  waters  of  the  Rio  (Irande,  and  was  therefore  in  neiitrwl  waters. 

The  Sni)reine  Court  held,  on  the  contrary,  that  the  i)roors  clearly 
showed  her  to  have  been  anchored  north  of  the  division  line  above 
named  and  within  the  waters  of  Texas,  then  in  possession  of  the  enemies 
of  the  United  States.  The  case  in  the  Supreme  (Joiirt  is  reported  in  .'>th 
Wallace,  pages  170  to  178;  to  which  report  reference  is  mad(;  for  the 
statement  of  the  peculiar  facts  of  the  case.  No  proofs  were  made  before 
the  commission  substantially  changing  the  facts- as  there  stated. 

Many  of  the  questions  involved  in  this  case  were  identical  with  those 
involved  in  the  case  of  the  Sir  William  Peel  above  reported,  and  there- 
fore need  not  be  again  stated. 

Edwin  Gerard,  No.  2t4,  claimed  as  assignee  of  the  insurers  of  Messrs. 
F.  DeLizardi  &  Co.,  the  alleged  owners  of  12,000  British  sovereigns,  a 
portion  of  the  cargo  upon  which,  together  with  the  vessel,  the(!osts  and 
expenses  consequent  upon  the  capture  were  apportioned  by  the  decree 
of  the  Supreme  Court. 

Simpson  &  Pitman,  No.  300,  and  McDowell  &  TTalliday,  No.  397,  claim- 
ants as  owners  respectively  of  i^arts  of  the  cargo  exemi)t.ed  from  con- 
tribution by  the  final  decree,  claimed  damages  by  the  depreciation 
of  the  cargo  during  its  detention,  and  for  costs  and  "expenses  to  which 
they  had  been  subjected. 

The  insurance  companies,  Nos.  427  and  428,  claimed  respectively  as 
insurers  of  portions  of  the  cargo  in  like  manner  exempted  from  contri- 
bution and  wliicli  had  been  duly  abandoned  to  them  as  insurers,  and 
payments  made  by  them  respectively  as  upon  a  total  loss. 

Upon  the  two  last-named  claims  of  the  insurance  companies,  ques- 
tions were  raised  on  the  part  of  the  United  States,  as  to  the  validity  of 
the  contract  of  insurance  in  the  same  regard  reported  above  in  the  case 
of  the  Sir  William  Peel,  and  also  as  to  the  riglit  of  the  insurance  com- 
panies to  recover  in  respect  of  portions  of  the  cargo  owned  by  persons 
not  appearing  to  have  been  British  subjects.  This  last-named  question 
was  subsequently  more  distinctly  raised  and  passed  upon  in  the  case  of 
the  Circassian,  and  will  be  hereafter  reported  under  that  case. 

The  commission  nnanimously  disallowed  all  the  claims. 

.  The  Brig  Yolarit,  John  Amy  et  al.,  No.  388,  claimants  for  vessel ; 
Edwin  Gerard,  No.  245,  claimant  for  cargo. 

This  vessel  was  captured  on  the  5th  November,  1863,  at  the  mouth  ot 
the  Rio  Grande,  taken  into  the  port  of  New  Orleans,  and  there  libelled. 
By  a  decree  rendered  on  the  11th  June,  1804,  the  district  court  con- 
demned the  vessel  and  cargo  as  lawful  prize.  From  this  dec.  je  the 
claimants  appealed  to  the  Supreme  Court,  which  court  reversed  the  de- 
cree of  condemnation,  but  held  that  the  capture  was  justified  by  "  prob- 
able cause,"  and  adjudged  restitution  of  the  vessel  on  payment  of  costs 
and  charges.     The  case  is  reported  in  the  Supreme  Court  in  5th  Wal- 


^t  tl 


112 


AMEEICAN-I3RITISII    CLAIMS    COMMISSION. 


I   '<  I 


|!:< 


.       .  .1 

.    'i  'i 

Hi  > 

■  p    ! 


laco,  ]»i>.  170.  ISO.  It  apppsircd  that  the  vossel,  whoii  ('aptiinnl,  was 
anchored  witliin  Texan  waters. 

The  ehiiiuaiits  in  No.  ."iS.S  chiinied  as  owners  of  the  vessel  for  reim- 
burscuient  of  the  costs  an<l  charges  paid  by  them,  and  for  (hunages  by 
the  (h'tention  of  tiie  vessel. 

Mr.  (lerard,  in  No.  245,  claimed,  as  assignee  of  the  insurers  of  the 
cargo  to  whom  tlie  same  had  been  abandoned,  and  who  liad  i»aid  as  for 
a  total  loss,  about  ;f 40,000,  besides  interest,  for  dei)reeiation  of  cargo 
after  tl»e  s(M/nre,  inclnding  the  value  of  nim'ty-three  cases  of  brandy, 
alleged  to  have  been  abstracted  from  the  vessel  while  in  custody  of  the 
ollicers  of  the  district  court. 

The  (piestions  involved  in  respect  to  this  vessel  are  substantially 
covered  by  (he  report  of  the  foregoing  case  of  the  Sir  William  I'eel, 
and  by  tlu^  report  of  the  case  in  5th  Wallace. 

The  claim  of  Amy  and  others,  No.  38S,  in  respect  of  the  vessel,  was 
unanimously  disallowed  by  the  comdnission. 

In  the  case  of  Mv.  (irerard,  No.  245,  the  commission  made  an  award 
in  favoi'  of  the  claimant  for  $1,785,  Mr.  Commissioner  Guruey  dissent- 
ing. ]  am  advised  that  this  awar<l  was  made  in  respect  of  tlie  brandj* 
abstracted  while  in  charge  of  the  ollicers  of  the  district  court;  and  that 
the  otlier  claims  for  damages  in  the  case  were  disallowed. 

The  bark  Science;  Thomas  E.  Angell  and  others,  claimants.  No.  391. 

Tliis  vessel  was  captured  at  the  same  time  and  place  with  the  Dash- 
ing Wave  and  the  Volant,  libelled  in  the  same  court,  and  the  same 
decrees  entered  resj)ectively  as  in  the  case  of  the  Dashing  Wave,  and 
the  same  appeals  taken  by  the  respective  parties  to  the  supreme 
Court.  That  court  allirmed  both  judgments  of  the  district  court  re- 
storing the  vessel,  and  charging  her  with  the  costs  and  expenses  of 
capture,  finding  upon  the  proofs  that  she  was,  when  captured,  anchored 
within  Texan  waters,  and  that  no  excuse  appeared  for  her  being  there. 
The  case  in  the  Supreme  Court  is  reported  in  5th  Wallace,  pp.  178,  170. 

The  counsel  for  the  claimants,  in  addition  to  the  points  above  cited  in 
the  case  of  the  Sir  WilUam  Peel  applicable  to  this  case,  contended 
that  the  capture  was  one  made  in  bad  faith ;  that  the  Science  had 
arrived  off  the  mouth  of  the  Uio  Grande  on  the  11th  August;  that, 
immediately  on  her  arrival,  she  was  boarded  by  au  btticer  of  a  United 
States  blockading  vessel,  who  examined  her  papers  and  inspected  her 
cargo,  and  permitted  her  to  anchor  and  discharge  her  outward  cargo, 
and  take  on  board  a  large  portion  of  her  return  cargo  ;  that  the  only 
allegation  made  by  the  capturing  officer  was  that  her  outward  cargo 
bad  included  cloth  of  the  character  and  description  used  for  confed- 
erate uinforms ;  that  this  allegation  constituted  no  ground  of  capture, 
and  even  if  originally  it  might  have  afforded  probable  cause  of  cap- 
ture, it  ceitainly  could  not,  after  the  vessel  had  been  allowed  to  lie 
three  months  in  the  offing,  and  take  on  board  a  valuable  cargo  of  over 


AGKNTS    RI:P0RT. 


113 


,'!()()  Imlos  of  cntion.  Tliiit  tlio  fjict  ofliiT  hcin^-  iit  Jinclior  witliin  Texiiii 
Wiitcrs,  if  it  «'.\isti'(l,  did  not  of  itsi'lf  (!oiisti(iitt'  probahlo  canst',  tliore 
Ik'Iiij;'  no  evi<l(M)(;t5  in  tlnMijise  to  indicate  an  intention  of  violation  of 
tiu>.  blockade  ;  that,  by  international  law  and  nnder  the.  tnnity  of  (Jiiada- 
Inpe  llidal;;(),  th(M'oa<lsti'ad  at  tlu!  nn)nth  of  tile  llio  (ri.nide  \vaM  an 
open  roa<l.stead,  wlie.re  nentral  vessels  tradin;:;'  with  Matanioras  had  a 
lij^ht  10  lie  at  aimhor,  whether  uortii  or  south  of  tlu5  conventional  lino 
between  the  United  States  and  Mexicjo  established  by  that  treaiy  ; 
and  that  thc!  United  States  conhl  no  more  lawfnlly  interfere  with  the  en- 
ioyinent  of  that  ri,i;ht  than  theyconhi  with  theri^htof  vessels  in  course 
of  the  same  tra«le  to  navi<rate  the  mouth  and  current  of  the  river  ;  that 
the  rijuiit  to  the  navifjation  of  the  I'io  (hande  int^lnded  the  ri^ht  to  the 
means  without  which  such  navigation  could  not  be  reasonably  enjoyed — 
ainon<>:  others,  the  right  to  moor  in  the  roadsteatl  at  its  mouth.  That, 
even  if  the  United  States  eoubl  claim  an  exclusive  right  to  occupy 
the  waters  north  of  this  line  for  the  puri)ose  of  blockade,  that  a  vessel 
honestly  engagtul  in  trade  with  JMatinnoras,  and  anchoring  for  that 
purpose  on  tlie  Texan  side  of  the  line,  was  entitled  to  notice  or  warn- 
ing before  it  could  be  treated  as  intruding  on  forbidden  ground,  and 
that  a  sei/uro  without  such  notice  was  unjustifiable;  that,  in  fact,  the 
proofs  failed  to  establish  that  the  vessel  was  lying  north  of  the  divid- 
ing hue,  and  that  the  blockading  vessels,  by  omitting  to  ap])ri/e  her 
that  she  was  anchored  in  a  place  which  they  deemed  an  imi»roper 
one,  and  by  permitting  her  to  be  there  and  take  on  board  her  return 
cargo,  were  estopped  to  allege  that  her  position  was  an  unlawful  one. 

The  claimant's  counsel  cited  the  Terecita,  5  Wall.,  180 ;  ]Madeiros  rs. 
Hill,  8  JJing.,  231;  Nailor  rs.  Taylor,  9  liarn.  &  Cres.,  718;  Carring- 
ton  vs.  Merchants'  Insurance  Conipany,  8  Peters,  517  ;  Mr.  Jefferson's 
paper  on  the  navigation  of  the  Mississippi,  1  Am.  State  1'aper.s,  2.">-l. 

On  the  part  of  the  United  States  it  was  contended  that  the  Science,  and 
the  other  vessels  of  her  class,  coi  not  enter  by  reason  of  their  di^aught 
of  water,  and  never  attempted  to  enter,  the  mouth  of  the  Kio  Grande, 
or  to  reach  the  port  of  JMatamoras.  That,  conceding  her  full  right  to 
navigate  that  river  and  the  waters  through  which  its  mouth  was  to  bo 
a[)proached,  and  even  for  that  purpose  to  pass  over  the  blockaded 
waters  of  the  Confederate  States,  it  did  not  follow  that  she  had  the 
right,  for  her  own  convenience  and  for  the  delivery  of  her  cargo  into 
lighters,  to  cast  anchor  within  those  blockaded  waters,  and  there  lie 
for  weeks  in  a  position  from  which  access,  by  means  of  lighters  to  the 
blockaded  coast,  was  easier,  by  night  or  by  day,  than  that  to  the  neutral 
port  for  which  her  cargo  professed  to  be  destined.  That  the  United  States 
were  lawfully  entitled  to  blockade,  and  did  blockade  the  sea-coast  of 
Texas,  and  that  such  blockade  would  be  wholly  nugatory  if  a  vessel  iu 
the  condition  of  the  Science  could  claim  and  exercise  the  right  to  cast 
anchor  within  the  blockaded  waters,  and  within  three  miles  of  the  enemy's. 
8  H 


114 


AMKRICAN-imiTISH    CLAIMS    COMMISSION. 


1 

,1  -i 

■' 'i 

i 

:!'■. 

;  ■ , 

n 


coast,  froin  wliicli  it  was  cvi<l(Mit  that  she  could,  with  groat  facility, 
hold  coiiiiniiiiication  with  that  coast. 

The  coiiiiiiission  awarded  to  the  claitnaiit  the  siini  of  $45,084,  Mr. 
Coiuinissioner  Frazcr  dissentingf. 

The  schooner  Matainoras ;  Oliver  K.  King,  administrator,  claimant, 
No.  288. 

This  vessel  was  captured  at  the  month  of  the  Kio  (IraJide  at  the  same 
time  with  the  Dashing  Wave,  the  Volant,  and  the  Science,  and  libelled 
in  the  United  States  district  court  at  New  Orleans.  The  district  court, 
on  the  proofs,  de(!ided  that,  at  the  time  of  the  cai)ture,  she  was  in  Mex- 
ican waters,  and  gave  Judgment  of  restitution,  (lertifying  reasonable 
cause  of  capture,  and  refusing  allowance  of  costs  or  expenses  to  the 
claimant.  No  appeal  was  taken  from  the  judgment  of  the  district 
court. 

Under  the  order  of  the  commission  the  claimant  assigned  as  the  rea- 
son of  his  omission  to  apiteal,  that,  "  in  consequence  of  the  short  space 
of  time  in  which  to  appeal,  only  thirty  days  being  alfowed  for  that  pur- 
pose, and  the  detention  of  the  nmils,  and  tin;  counsel  in  New  Orleans  not 
having  taken  the  appeal,  the  time  to  appeal  expired." 

On  the  part  of  the  United  States  it  was  claimed  that  the  proofs  showed 
probable  cause  of  capture  in  the  conduct  and  position  of  the  Matamoras  ; 
but  this  was  denied  on  the  part  of  the  claimants.  The  counsel  for  the 
United  States  insisted  that  uo  suflicient  excuse  was  assigned  f«  the  fail- 
ure to  appeal. 

The  commission  disallowed  the  claim,  {'Mr.  Commissioner  Gurney  dis- 
senting,) on  the  ground  of  the  insufticiency  of  the  reasons  for  failure  to 
appeal. 

The  Isabel;  George  Wigg,  claimant.  No.  269. 

This  vessel  was  ca[)tured  on  the  2,'id  September,  1852,  on  a  voyage 
from  Bayport,  in  Florida,  to  Havana;  was  taken  into  the  port  of  Key 
West,  there  libelled  in  the  United  States  <listrict  court  before  Judge 
Marvin,  and  condemned  as  lawful  prize.  An  appeal  was  taken,  under  the 
then  existing  law,  to  the  circuit  court  of  the  United  States  for  the  same 
district;  and  this  appeal  was  subsequently,  uiuler  the  United  States  stat- 
utes of  3d  March,  18G3,  (12  Stats,  at  L.,  I'M),  §  7,)  and  of  3()th  June,  1804, 
(13  id.,  311,  §  13,)  transferred  by  stii)ulation  to  the  Supreme  Court,  in 
which  court  the  claimant  having  failed  to  tile  the  transcript  from  the 
court  below,  pursuant  to  the  rules  of  that  court,  the  case  was  dismis8e<l, 
on  motion  of  the  United  States,  without  appearance  on  the  i)art  of  the 
claimant.  The  claimant  alleged  himself  the  sole  owner  of  both  vessel 
and  cargo ;  and  alleged  that  the  port  of  Bayport,  from  which  the  vessel 
sailed,  was  not  blockaded  at  the  time  of  the  capture  or  of  the  entrance 
or  departure  of  the  Isabel  into  and  from  that  port.  The  fact  of  no  block- 
ade was  sought  to  be  established  by  the  testimony  of  the  master  and 


AGKXT8    KKPORT. 


llf) 


crow  of  the,  vossol,  who  tostillcd  that  tlu'y  saw  no  blockiidiiij;  vessels  ))ii 
tMitt'iiiijij  or«h'p;irtiiiiH'.  Tlio  tiiiio  of  day  or  ui'^ht  of  tlieir  eutruiice  or  dc 
piirtiirc  wiis  not,  shown. 

The  counsel  of  the  United  States  relied  on  the  olllciid  reports  of  the 
Secretary  of  the  Xavy  and  aeconipanyinj;'  «locnnients  for  the  yeais  ISdii 
and  l.Sd.J,  and  npon  the  decision  of  the  <listrict  court  havin;;  Jinlicial 
knowledge  of  the  current  historical  factH  of  the  day,  as  sulhcriently 
cstaUlishinH:  the  fact  of  hloctkade.  Documentary  proofs  were  lih'd  on 
the  part  of  the  United  States  K'oinfj  to  show  the  claimant,  Wi;;?;.  at 
the  time  of  the  capture  of  the  vessel  actually  en^'ajfcd  in  sliippiii};'  mu- 
nitions of  Mar  to  the  confederat*^  ycivernment ;  and  that  both  l)ef(U(i 
and  after  the  capture,  he  and  the  vessels  which  he  owned  or  con- 
trolled were  for  a  lonj"-  time  lar<,H'ly  enj;ay('d  in  the  like  employment. 

On  the  part  of  the  United  States  it  was  maintained:  1,  that  the  Isabel 
was  lawfully  captured  in  the  acrtual  course  of  a  voya;;o  in  violation  of 
the  blockade;  2,  that,  by  the  failure  of  the  claimant  to  prosecute  his 
appeal  to  the  Supreme  Court,  and  procure  an  adjudication  of  that  court 
upon  the  merits  of  his  case,  he  was  debarred  from  a  standiufjf  befort'  the 
commission  ;  .'5,  that,  by  his  personal  acts  in  aid  of  tlu^  enennes  of  the 
United  States  in  carryiufjf  on  their  war  ajrainst  those  States,  the  claim- 
ant was  debarred  of  my  stundiufr  as  a  Hritish  subject  before  the  (!om- 
mission  ;  4,  that,  by  l.iose  acts,  he  had  constituted  himself  an  enemy  of 
the  United  States,  .so  that  his  property  upon  the  high  seas  was  liable  to 
capture  as  enemy's  property,  irrespective  of  any  ([uestion  of  blockade. 

All  these  propositicms  were  controverted  on  the  part  of  the  claimant. 

The  commission  unanimouslj'  disallowed  the  claim. 

The  steamship  Pearl ;  Shand,  Iligson  &  Co.,  claimants,  No.  270. 

The  Pearl  was  captured  in  January,  180  J,  by  a  United  States  cruiser, 
in  the  Atlantic  Ocean,  between  the  Bahama  Banks  and  Nassau,  on  a 
voyage  purporting^  to  be  from  Queenstown  to  Nassau.  She  was  taken 
into  the  port  of  Key  West,  and  there  libelled  as  prize  on  the  alleged 
jiround  that  her  actual  destination  was  for  one  of  the  blockaded  ports, 
]\Ir.  Geo.  Wig<?  intervened  as  claimant  in  the  district  court,  alle^iiij? 
hiujselfthe  sole  and  absolute  owner  of  the  vessel.  The  district  court 
adjudged  restitution  of  the  vessel  and  cargo.  An  appeal  was  taken  by 
the  United  States  to  the  Sui)reme  Court,  and  that  court  rever.sed  the 
decree  of  the  district  court,  and  adjudged  condemnation  of  the  vessel 
and  cargo.     (See  report  of  the  case  of  the  Pearl,  oth  Wallace,  571.) 

The  claimants  here  alleged  that  the  vessel,  though  i)urchased  by  Wigg 
in  his  own  name,  was  actually  purchased  by  him  as  agent  for  iNIessrs. 
J.  &  T.  Johnson,  merchants  of  Liverpool,  to  whom  she  actually  be- 
i  iged,  though  registered  in  the  name  of  Wigg.  That  J.  &  T.  Johnsort 
h  d,  since  the  condemnation,  assigned  to  the  claimants,  by  way  of  mort- 
gage, their  claim  upon  the  United  States  for  the  alleged  wrongful  cap- 
ture and  condemnation.    No  proofs  were  made  by  the  claimants  of  the 


fh     'I 


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'-hi; 

'it' 

\'  I'll 
i'  hi- 
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li 


iflilKil 


)■' 


116 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


title  of  the  Messrs.  Johnson,  nor  of  the  assiguuieut  of  the  chiim  bj- 
th<'in  to  the  claiuiants. 
The  claim  was  unanimously  disallowed. 

The  schooner  D.  F,  Keelinpf ;  Mary  Hntchinson,  claimant,  No,  277". 

Tliis  vessel  was  seized  in  the  port  of  New  York,  on  the  0th  October, 
]801,  and  libelled  in  the  United  Statesdistrict  court  for  confiscation  under 
the  statute  of  13th  Jnl}',  1801,  (lli  Stat,  at  L.,)  as  the  property  of  an 
inhabitant  of  the  State  of  Louisiana,  then  in  rebellion  ajjainst  the  United 
States.  Theclaimant,  Mary  IJutchinson,  interposed  a  claim  to  the  vessel, 
denying  that  she  was  an  inhabitant  of  New  Orleans,  alleging  herself  a 
native-born  subjtHit  of  Great  Britain,  and  only  transiently  present  in  New 
Orleans  upon  a  visit  to  relatives  there  residing.  Tlie  district  court  found 
this  allegation  sustained  by  the  proofs,  and  adjudged  restitution  of  the 
vessel,  certifying  probable  cause  of  seiznre,  and  refusing  costs  or  dam- 
ages to  the  claimant.  No  appeal  was  taken  from  the  decreed  of  the  dis- 
trict court.  On  the  part  of  the  clainmnt  an  atlidavit  of  one  Leetch  was 
filed,  excusing  the  omission  to  ai)peal  on  the  ground  that  his  own  busi- 
ness required  him  to  retiun  home inunediately  to  Mexico,  (he  having  been 
at  the  time  the  agent  of  i\Irs.  Hutchinson,)  and  that  Mrs.  Hutchinson  was 
not  able  to  attend  to  the  api)eal  in  person,  "  by  reason  of  age  and  infirm- 
ity." The  clainumt's  memorial,  verified  by  her  own  oatli,  alleged  that 
she  was  born  in  181  o,  making  her  for.y-eight  years  old  at  the  date  of 
tlie  decree  of  restitution.  She  claimed  here  danniges  by  the  detention  of 
the  vessel,  and  costs  incurred  in  defense  of  the  suit,  $18,003,  besides 
interest. 

The  proofs  before  the  commission  showed  that  the  claimant  em- 
igrated with  her  husband  to  New  Orleans  about  1850;  that  her  hus- 
band died  there  in  1852,  and  that  the  claimant  had  ever  since,  up  to  the 
('are  of  the  deposition,  (February,  1873,)  been  pernmnently  domiciled  in 
New  Orleans. 

On  the  i)art  of  the  United  States  it  was  contended  that  the  proof  here 
fully  showed  the  liability  of  the  vessel  to  condemnation  before  the  dis- 
trict court;  that  such  condenuiation  was  there  defeated  by  false  alle^-a- 
tions  aiul  proofs  ;  that,  on  the  merits,  the  clainmnt  was  not  entitled  to 
damages ;  and  that  no  sufficient  reason  was  shown  for  her  failure  to 
appeal  from  the  decree  of  the  district  court. 

The  commission  unanimously  disallowed  the  claim. 

The  schooners  Albion,  Alert,  La  CrioUa,  Mary  Stewart,  Agnes,  Fanny, 
Anne  Sophia,  Defiance,  Nelly,  Agnes,  J.  C.  Eoker,  Florida,  Anna, 
Wanderer,  Mabei,  Julia,  Swift,  Pride,  Cliance,  Arctic,  Brilliant,  John 
W.,  Industry,  Time ;  the  sloops  Lida  and  Julia,  and  the  steamer  Liz- 
zie ;  Sanders  &  Sons,  claimants,  No.  281. 

Messrs.  Sanders  &  Sons,  merchants  of  Nassau,  filed  their  memorial 
claiming  damages,  in  all  $U2,G43,  besides  interest,  for  the  alleged  wrong- 
ful capture  and  coudemuation  of  the  tweuty-seveu  vessels  above-named. 


agent's  report. 


117 


Thoir  meinoriiil  contaiiieil  simply  a  general  avermont  that  tlieir  vohsoIs 
woro  l.iwfiiUy  ensajjed  in  trade  "  with  certain  [)orts  of  the  Uiiitetl  States 
wliicli  were  liehl  open  by  tlie  Government  of  th(?  United  States  to  for- 
ci,<^'n  commerce,  and  also  with  certain  ports  of  Great  Britain  and  other 
niUions."  That  they  were  with  their  car^iT^oes  "  nnhuvfnlly  and  wrotiin- 
fnlly  captured,  in  violatioji  of  the  law  of  nations,"  by  cruisers  of  the  Uni- 
ted States,  and  condemned  and  sold,  A  schedule  of  the  dilfv^'rent  vessels, 
with  copies  of  the  respective  registers,  was  file<l  with  the  memorial.  No 
other  proofs  were  tiled  for  the  claimants,  and  the  claim  was  unani- 
mouslv  disallowed. 


The  schooner  Echo  ;  Peter  A.  Spearwater,  claimant,  Xo.  284. 

The  E(!ho  w  is  captured  by  a  United  Stat<vs  vessel  of  war  on  the 
31st  of  May,  18(>."5,  on  a  voya^je  from  .^fatamoras  to  New  York;  was 
taken  into  the  port  of  Key  West ;  there  libelled  in  th(Mlistrict  (!onrt ; 
by  which  coiirt  judoinent  of  restitution  was  awarded,  certifyinj>'  proba- 
ble cause  of  capture,  and  refn si n*>' costs  or  daruiJ'^es  to  the  (daimants. 
No  appeal  was  taken  and  no  reason  was  assi<»iie(l  for  the  failure  to  aj)- 
peal.  In  the  testimony  before  the  jirize  court  the  mate  of  the  vessel 
testified  that  the  carj^o  was  taken  on  board  at  the  mouth  of  the  Kio 
Grande,  and  was  purchased  by  the  claimant  himself  in  Brownsville, 
Texas,  a  town  of  the  Confederate  States;  that  the  Echo  lay  oil'  the 
mouth  of  the  Kio  G-  mde  for  about  four  months,  from  January  till  May, 
ISO;};  that,  during  most  of  that  time,  the  claimant,  the  owner  and 
master  of  the  vessel,  was  in  Brownsville  and  there  purchased  the  cot- 
ton in  question.  The  claimant  himself,  in  his  dei)()sition  denied  these 
statements  of  his  mate;  and  the  district  Jud^'e  deemed,  the  evidence 
insuilicient  to  justify  condemnation,  but  suilicient  to  establish  proba- 
ble cause. 

The  commission  unanimously  tlisallowed  the  claim. 

The  bark  S[)ringbok ;  John  Eiley,  manager,  <S:c.,  No.  412,  claimant 
for  vessel ;  S.  Isaac  Cam[)bell  &  Co.  and  Tliomas  Stirling  Bcgbie,  No. 
310,  clainuints  for  cargo. 

This  vessel  was  captured  by  n  United  States  cruiser,  on  the  .'hi  Feb- 
ruary, 18(53,  on  the  Atlantic  Ocean,  about  one  hundred  and  tifty  miles 
east  of  Nassau,  New  Providence ;  was  taken  into  the  port  of  New 
York,  and  there  libelled  in  the  district  court.  That  court  rendered  a 
decree  of  condemnation  of  both  vessel  and  cargo.  (See  the  report  of 
the  case,  Blaich ford's  Prize  Cases,  |)p.  434  to  4(J3.)  The  claimants  ap- 
pealed to  the  Supreme  Court,  which  altirmed  the  Judgment  of  condeni- 
nation  of  the  district  court  as  to  the  cargo,  but  reversed  it  as  to  the 
vessel,  adjudging  restitution  of  the  vessel,  but  without  costs  or  <lam- 
ages  to  the  claimants,     (o  Wall,  1.) 

The  claimant  John  Riley,  No.  442,  claimed  as  manager  of  the  London 
A  I  Insurance  Association,  the  A  1  Gua'antee  Insurance  Association, 


I 

if 


^ 


i 


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i    i 


li 


!       I 


118 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


and  tlie  Colouial  A  1  Insurance  Association,  insurers  of  the  vessel,  and 
who  had,  on  abandonment  by  the  owners,  paid  as  for  a  total  loss.  He 
claimed  an  award  for£4,G15,  besides  interest,  damages  for  the  detention 
ot  the  vessel,  loss  of  profits,  and  costs  and  expenses  in  the  i)rize-courts 

The  claimants  S.  Isaac  Campbell  &  Co.,  and  Begbie,  claimed  £(i8,378, 
the  alleged  value  of  the  condemned  cargo,  and  costs  and  expenses  in  the 
])rize  courts.  The  facts  of  the  caseas  appearing  before  the  prize  courts 
are  sufficiently  set  forth  in  the  reports  of  the  respective  courts  above 
cited. 

In  addition  to  the  proofs  before  the  prize  courts  the  claimants  gave 
evidence  before  the  commission  tending  to  show  that  tiie  actual  and 
ultimate  destination  of  the  cargo  was  Nassau,  and  that  it  was  iuteuded 
to  be  there  sold  in  open  market  by  the  agent  of  the  owners. 

This  evidence  consisted  of  the  testimony  of  the  agent  of  the  claimants 
at  Nassau  to  that  ettect,  certain  letters  from  the  claimants  to  said  agent 
proved  by  him,  and  general  proofs  showing  that  there  was  at  Nassau 
a  market  for  the  various  kinds  of  merchandise  constituting  the  cargo  of 
tiie  vessel. 

Neither  of  the  claimants  for  the  cargo  placed  himself  upon  the  stand 
to  testify  as  to  the  actual  destination  or  the  intent  of  the  owners  in 
relation  to  it.  The  claimant  Begbie  was  examined  as  a  witness  in  behalf 
of  Mr.  Eiley,  the  claimant  in  No.  442 ;  and,  on  his  examination-in-chief, 
testified  merely  that  the  cargo  of  tlie  Springbok  was  to  be  discharged 
at  Nassau;  that  there  was  no  agreement  for  the  continuance  of  the  voy- 
age, or  for  the  employme  C  or  engagement  of  the  vessel  after  her 
arrival  at  Nassau;  and  that  the  captain  of  the  vessel  knew  nothing  of 
the  ownership  of  the  cargo.  On  cross-examination  he  declined  to 
answer  as  to  whether  he  was,  in  the  years  1802  or  1803,  engaged  in  block- 
ade-running speculations,  and  whether  he  was,  at  the  time  of  her  cap- 
ture, the  owner  of  the  Gertrude  or  her  cargo,  (this  being  the  vessel 
referred  to  in  the  report  of  the  case  in  the  Supreme  Court,  and  the 
l)roofs  upon  the  condemnation  of  which  were  invoked  in  the  case  of 
the  Springbok.) 

On  the  part  of  the  United  States  evidence  was  given  showing  both  the 
firm  of  S.  Isaac  Campbell  &  Co.  and  Begbie  actively  and  largely  engaged 
in  blockade-running  ventures,  ar^d  in  supplying  by  contract  the  confed- 
erate government  with  iiiilitary  supples.  These  proofs  included  origiiuil 
contracts  and  letters  between  the  claimants  S.  Isaac  Campbell  &  Co. 
and  the  confederate  secretary  of  war,  and  other  oflicials,  showing  con- 
tracts by  that  firm,  running  through  the  years  1802  and  1803,  for  cannon, 
ritles,  swords,  accoutrements,  gunpowder,  shells,  clothing,  &c.,  in 
large  quantities,  and  delivery  of  the  same  to  the  confederate  government 
untler  such  contracts  to  the  amount  of  several  bundled  thousand  pounds. 
Also  evidence  showing  the  claimant  Begbie  a  contractor  with  the  con- 
federate governnjent  for  the  establishment  of  lines  of  fast  steamers,  to 
run  itj  the  service  of  that  government  between  the  blockaded  ports  of 
the  Confederate  States  and  ports  in  the  West  Indies. 


AGENT  S    REPORT. 


119 


On  tlie  part  of  the  cliumants  it  was  contendod  that  the  proofs  in  tlio 
])iize  court  failed  to  sustain  tije  conclusions  of  the  district  court,  that 
tlie  vessel  "  was  Ivuowingly  hi<len  in  wliqle  or  in  i)art  with  articles  (!on- 
traband  of  war,  with  intent  to  deliver  such  j.rticles  to  the  aid  and  use  of 
the  enemy  ;"  that  the  true  destination  of  the  shi[)  and  car}»o  was  not  Nas- 
sau, a  neutral  i)ort,  and  for  trade  and  commerce,  but  some  port  lawfully 
blockaded  by  the  forces  of  the  United  States,  and  with  intent  to  violate 
such  blockade ;  and,  further,  that  the  pai)ers  of  the  vessel  were  simu- 
lated ar.d  false.  That  they  also  failed  to  sustain  the  conclusions  of  the 
Sni)renie  Court,  "  that  the  cargo  was  originally  shi[»ped  with  an  intent 
to  violate  the  blockade;  that  the  owners  of  the  cargo  intended  that  it 
should  be  trans-shipped  at  Nassau  into  some  vessel  uiore  likely  to  succeed 
in  reaching"  safely  a  bl')ckaded  port  than  the  Si»ringbok  ;  that  the  voy- 
age from  London  to  the  blockaded  port  was,  as  to  cargo,  both  in  law 
and  in  the  intentof  the  parties,  one  voyage,  and  that  the  liability  to  con- 
demnation, if  cai)tured  during  any  part  of  that  voy.;ge,  attached  to  the 
cargo  from  the  time  of  sailing.'' 

The  counsel  for  the  claimants  further  contended  that  the  proofs  filed 
for  the  first  time  before  this  commission  conclusively  rebutted  these 
conclusions  of  each  of  the  prize  courts,  and  established  the  ultimate 
destination  of  both  ship  and  cargo  to  be  Nassau,  the  cargo  to  be  there 
sold  in  open  market. 

The  counsel  called  attention  to  an  error  in  the  opinion  of  the  Supreme 
Court  in  stating  sixteen  dozen  swords  and  ten  dozen  ritle-bayonets  as 
forming"  part  of  the  cargo  of  the  Springbok,  when  in  fact  the  proofs 
showed  the  vessel  to  have  carried  only  one  sample-case  containiiig  one 
dozen  cavalry-swords  and  one  dozen  ritle-bayonets;  and  to  the  fact 
that,  on  the  sale  of  the  cargo,  the  entire  proceeds  of  the  swords  and 
bayonets,  and  of  the  array  and  navy  buttons,  were  only  $270  out  of  the 
gross  proceeds  of  the  entire  cargo  of  nearly  $250,000;  and  that,  includ- 
ing the  army  blankets,  saltpetre,  and  all  that  portion  of  the  cargo  which 
could  be  regarded  for  any  purpose  as  qurtsl  contraband,  the  i)r()ceeds  of 
such  alleged  contraband  goods  were  less  than  one  per  cent,  of  the  pro- 
ceeds of  the  entire  cargo.  He  urged  that  the  Judgnieut  of  the  Supreme 
Court  sustained  "extreme  pretensions  of  belligerent  right  to  subjugate 
neutral  commerce  to  its  necessities,"  which  ought  not  to  be  sustained  by 
this  international  tribunal ;  that,  to  sustain  the  doctrine  of  liability  to 
capture  on  the  theory  of  "continuous  voyage,"  it  must  appear  that  the 
cargo  was  intended  as  a  part  of  the  original  and  planned  adventure  to 
be  carried  from  the  neutral  port  to  the  eiiemy's  port ;  that  the  extrenie 
doctrine  in  this  regard  had  been  slated  by  the  Sn[)reme  Court  in  the 
case  of  the  Bermuda,  (3  Wallace,  515,)  as  follows: 

A  voynge  from  a  nenfrnl  lo  a  Iclli^cnsnt  port  is  one  iuid  tin-  huiiio  V(i.vm!j;o,  wliethcr 
tlio  di'stiiiatioii  bo  ulterior  o'-  direct,  iiiiil  whether  with  or  wilhoiu.  the  interpo.sitioii  oi" 
one  or  more  iiiterm»!<liate  ports,  and  whetlu^r  to  be  pertormcd  iiy  one  ve.sMel  or  Hevcral 
(;iiij)loyed  iu  the  same  trausaetiou  and  iu  the  accomplishuient  of  the  same  purpose. 


4  [i 


120 


A]MKUICAN-RRITISTI    CLAIMS    COMMISSION. 


That  tlie  measnro  of  tliiu  doctrine,  as  applied  by  the  Supreme  Court 
to  the  ease  of  the  Bermuda,  was  as  follows: 

What  has  already  oooti  adduced  of  Iho  cvidenco  satisfies  us  completuly  that  tlio 
orifiiiiiil  (k'stination  of  the  15t!niin(la  was  to  a  liloclcaded  port;  or,  if  oth(!r\vis(\  to  an 
iiitiTiiifdiuto  port,  witli  liitriit  to  send  forward  the  caryo  by  trans-sliiprncnt  into  a  vessel 
provided  for  the  coiiii)letioii  of  the  voyage. 

That,  with  the  doctrine  of  continuous  voyajje  as  thus  limited  and 
defined,  nothing  in  the  <!ase  of  the  Sprinobok  involves  any  neeessaiy 
controversy;  but  that  this  doctrine  ()uj,Mit  not  to  be  extended  so  as  to 
make  S'uilty  a  trade  between  neutral  ])orts  to  v.-hicU  the  intercepted 
voya,i;e  was  actually  and  really  confined,  by  surmise,  conjecture,  or  moral 
evidence  not  of  a  lurther  carriaj^e  and  further  carrier,  but  only  of  a 
proliability  that  such  supplementary  further  «^arriafi,e  an<l  some  supple- 
mentary further  carrier  may  or  must  have  been  included  in  the  orioinal 
scheme  of  the  commercial  adventure.  Tiiat  such  a  tiction  of  continuous 
voyage  for  the  case  of  all  tnide  between  neutral  ports,  which  hus  its 
stimulus  from  the  state  of  war,  made  the  belli jjerent  prize  court  master 
of  neutral  connnerce,  and  in  fact  established  a  paper  blockade  of  the 
neutral  [nn'ts  in  (juestion,  and  left  their  commerce  at  the  mercy  of  the 
belligerent.  That  the  whole  history  of  prize  Jurisdiction  on  the  doctrine 
of  continuous  voyage  shows  that  tlr )  province  of  probable  reasoning  has 
been  confined  to  the  (piestion  of  intent,  while  the  corpus  delicti. — the 
voyage  fo  the  enemy  port — must  be  proved  with  the  stime  deliniteness 
of  vehicle,  port,  and  process  of  execution  as  is  confessedly  essential 
when  the  voyage  is  direct  and  simjile. 

That  the  original  cai>ture  of  the  Springbok  was  wholly  unjustifiable; 
that  the  visitation  and  search  disclosed  nothing  which  rendered  her  voy- 
age amenable  to  further  moft'station ;  that  there  was  nothing  in  the  ves- 
sel, her  cargo,  or  her  i)apers,  her  position,  or  the  circumstances  of  her 
capture,  justifying  the  cruiser  in  sending  the  vessel  into  port  for 
libel,  on  the  speculation  that  it  might  be  that  the  cargo  was  to  go  for- 
ward, and,  if  so,  that  fact  perhaps  might  be  provable;  that  it  was  a 
marked  case  ot  si)eculative  sei/Aire  and  detention,  not  upon  imlications 
which  the  visit  and  search  at  sea  disclosed,  but  for  the  purpose  of  a 
visitation  and  search  in  the  prize  courts  for  independent,  extraneous, 
and  argumentative  grounds  of  suspicion. 

That  the  trial  in  the  piize  court  violated  the  essential  principles  of 
the  i)rize  jurisdiction  as  establislied  between  belligerents  and  neutrals, 
and  in  which  the  latter  find  the  limits  of  their  exposure  and  submission. 
That  the  rule  of  the  prize  courts  that  condemnation  could  only  be  justi- 
fied upon  the  proof  furnished  by  the  vessel  itself,  her  papers,  and  cargo, 
and  the  depositions  of  those  on  board,  is  not  a  mere  matter  of  practice 
or  form,  but  is  of  the  very  essence  of  the  administration  of  prize  law. 
That,  accordingly,  the  invo(!ation  by  the  eai)tors  of  the  papers  from  the 
cases  of  the  (Jertrude  and  Stephen  Hart  as  i)artof  the  primary  i)ioofs  on 
which  to  coiidemn  the  Springbok  and  her  cargo,  was  unprecedented,  ac- 


AGENT  S    REPO  IT. 


121 


knowlo(1j>e(l  Iw  the  Snproine  Court  to  ho,  ivro^nhn  and  not  in  acconi- 
iiii<!e  witli  rhe  rules  of  pioceodiiiy'  in  prize,  nnd  was  not  a  ineie  irregu- 
larity in  i'orm  but  was  subversive  of  the  principles  of  prijce  jurisdiction. 

That  the  j)assin<;  of  condemnation  without  s'^'i'L"'  the  claimants  an 
oi)p()rtnnity  for  further  ])roof,  was  a  manifest  iiijusti(x^  ;  and  that  the 
absolute  (condemnation  without  su(!h  opportunity  for  further  proofs  was 
contrary  to  the  rightful  system  of  prize  juvisdi(!tion. 

Tliat  the  jn-esence  of  the  trivial  amount  of  contraband  (as  held  by  the 
prize  (!ourt)  (jonld  not  be  regarded  either  as  evidence  of  its  own  destina- 
tion or  of  that  of  its  accompanying  innocent  cargo  toan  ulterior  market, 
nor  as  ground  for  coiulemiuition  indepemleut  of  tiie  (piestiou  of  intended 
breach  of  blockade  ;  citing  ou  this  poiut  Dr.  Gessuer's  Droit  ties  Nciitres 
nur  Mer,  p.  122,  as  follows  : 

It  is  ^vroug  to  seize  contriiband  goods  in  a  nonfral  veasol  wlien  thoy  aro  in  siicli 
siiiiill  (inantities  that  tliuir  inort'cnsive  cliavacter  i,s  tliL'ri;by  cstaltlisluHl.  Tiic  bona  Jidt^ 
is  a  ([iicstion  to  bo  (Ictorniinod  by  all  the  circumstances  of  tlio  case,  among  which  tho 
quantity  is  a  very  material  ingredient. 

In  addition  to  the  above,  the  counsel  for  the  claimant  cited  the  follow- 
ing : 

Tho  letter  of  Sir  Wra.  Scott  and  Sir  John  Xicholl  to  Mr.  Jay,  3 
Phillimore,  551 ;  Story  on  Prize  Courts,  (by  Tratt,)  pp.  3  to  10, 17,  18,  24 
to 20;  Wheaton's  Elements,  part  4,  c.  2,  §  15;  Trumbull's  Iteminiscences 
of  his  own  Times,  193;  the  decision  of  the  Geneva  Tribunal  upon  the 
case  of  the  Florida,  accpiitted  in  the  vice-admiralty  court  at  Nassau  on 
the  charge  of  violation  of  the  neutrality  act  of  Great  Britain  ;  The  Polly, 
2  Rob.,  301 ;  The  Maria,  5  hJ.,  035 ;  The  William,  hi.,  385 ;  The  Thoniyris, 
Edwards's  Reps.,  17  ;  3  Phillimore,  358  ;  5  Rob.,  334. 

On  the  part  of  the  claimants  of  the  vessel  it  was  contended,  in  addi- 
tion to  the  positions  above  st.ted,  that  it  was  found  by  the  Supreme 
Court  that  her  papers  were  regular  and  her  voyage  a  bona  fide  one 
between  London  and  Nassau;  that  the  papers  were  all  genuine,  and 
there  was  no  concealment  of  any  of  them,  and  no  spoliation  ;  that  the 
owners  were  neutrals,  appeared  to  liav^e  no  interest  in  the  cargo,  and 
could  have  had  no  knowledge  of  its  alleged  unlawful  destination  ;  that 
these  conclusions  of  the  Supreme  Court  ni)ou  the  evidence  before  it 
were  strengthened  and  completely  sustained  by  the  additional  testimony 
taken  before  the  commission  ;  that  the  grouiuls  on  which  the  Supreme 
Court  denied  costs  and  damages  to  the  (claimants  of  the  vessel,  to  wit» 
misrepresentation  by  the  master  on  his  examination  as  to  his  lack  of 
kimwledge  of  the  grounds  on  which  the  captiire  was  made,  and  the  fact 
that  he  had  signed  bills  of  lading  which  did  not  state  truly  and  fully 
the  nature  of  the  goods  contained  in  the  bales  and  cases  mentioned  in 
them,  were  unsustaiiied  as  matters  of  fact  by  the  evidence,  and,  even 
if  sustained,  were  in  themselves  not  of  tlje  least  significance,  and  did 
not  and  could  not  affect  the  interests  or  issues  involved  in  the  capture? 
that,  80  far  as  the  vessel  and  her  owners  were  concerned,  her  voy;ige  was 


•is 


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m 

> 


I'U1 


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j 


'■I 
I! 


!j 


■it 
ft  1 


122 


AMKRICAN-BRITISH    CLAIMS    COMMISSION. 


lionest,  her  papers  fair,  aiid  the  {rood  faith  of  the  charter-i)arty  absolute 
and  unimpeachable,  and  the  clarations  and  conduct  of  her  captain 
not  so  obnoxious  to  just  writicisin  as  to  justify  the  infliction  of  punish- 
ment upon  the  innocent  owners. 

On  the  part  of  the  United  States  it  was  maintained  that  the  conclu- 
sions arrived  at  by  the  Supreme  Court  as  above  stated,  and  upon  which 
the  decree  of  that  court  condemning  the  cargo  was  based,  were  fully  sus- 
tained by  the  evidence  before  the  prize  court.  That  tlie  claimants  of 
the  cargo  had,  by  the  judgmeui;  of  the  Supreme  Court,  full  notice  of  the 
ground"  on  which  the  cargo  was  condemned,  those  grounds  relating 
principally  to  their  own  previous  conduct  in  furnishing  military  sup- 
plies to  the  confederate  government  and  in  running  the  blockade,  and 
to  the  presumption  raised  by  the  circumstances  of  the  case  as  to  their 
own  design  and  incention  in  regard  to  the  destination  of  the  cargo. 
That,  notwithstanding  this  notice,  they  had  failed  to  avail  themselves  of 
the  opportunity  attbrded  them  before  the  commission  to  testify  as  to  the 
facts  and  conclusions  thus  found  by  the  Supreme  Court ;  and  that  in 
the  case  of  Mr.  Begbie,  when  placed  upon  the  stand  involuntarily,  he 
had  refused  to  answer  concerning  these  very  uiatters.  That  this  failure 
and  refusal  to  testify  on  the  part  of  the  claimants  was  to  be  taken  as  in 
etfect  an  admission  of  the  correctness  of  the  conclusions  of  the  court. 

That  by  the  evidence  adduced  before  the  commission  the  fact  was  fully 
established  that  all  these  claimants  of  the  cargo  were  extensively  engaged 
in  running  the  blockade,  and  also  in  furnishing  military  supplies  to  the 
enemy.  That  the  facts  thus  proved  went  strongly  to  confirm  the  con- 
clusions of  the  court  that  the  cargo  Avas  destined  and  intended  for 
trans-shipment  to  and  delivery  in  the  Confederate  States,  and  not  for  a 
market  at  Nassau.  That  they  also  established  that  these  claimants  legally 
and  morally  were  not  neutrals,  but  enemies  of  the  United  States  actually 
engaged  in  the  prosecution  of  the  war  against  those  States ;  and  that,  as 
such,  their  property  on  the  high  seas  was  liable  to  capture  without 
legard  to  the  question  of  blockade.  That  the  question  of  national 
character  in  such  case  was  always  a  question  of  the  individual  national 
character  of  the  owner,  and  not  of  his  national  character  as  established 
by  paramount  allegiance,  citing  the  Anna  Catherina,  4  Rob.,  119 ;  the 
Vigilantia,  1  id.,  1 ;  the  Vriendschap,  4  id.,  16G,  and  the  authorities  cited  in 
3  Phillimore,  G05,  GOG.  That  these  proofs  also  precluded  the  claimanits 
from  a  standing  before  this  coiniuission  as  neutral  British  subjects. 
That  as  to  the  vessel,  the  capture  and  condemnation  of  the  cargo  being 
lawful,  the  seizure  of  the  vessel  and  taking  her  into  port  wa-  also  law- 
ful as  the  sole  means  of  reaching  the  cargo  which  was  lawful  prize,  and 
that  in  such  case  the  vessel  was  not  entitled  to  costs  or  damages. 

The  commission  unanimously  disallowed  the  claiuj  for  the  cargo  in 
Nc.  31G.  In  the  claim  for  the  vessel.  No.  442,  they  unanimously  awarded 
to  the  claiuiant  the  sum  of  $5,()G5.  I  am  advised  that  this  award  was 
made  in  respect  of  the  detention  of  the  vessel  from  the  date  of  the 


AGENTS    REPORT. 


123 


«locree  of  the  district  court  to  the  date  of  her  discharge  under  the  decree 
of  the  Supreme  Court,  the  latter  decree  having-  established  that  the 
vessel  should  have  been  discharged  by  the  decree  of  the  district  court. 

The  steamship  M.  S.  Perry,  alias  Salvor;  John  McLennan,  claimant, 
No.  370. 

Tliis  vessel,  then  known  as  the  Salvor,  was  owned  at  the  breaking  out 
of  the  rebellion  by  James  McKay,  a  citizen  of  Florida.  In  September, 
18()1,  McKay  took  her  to  Havana,  and  there  went  through  the  form'  of 
a  sale  of  the  vessel  to  McLenuan,  the  present  claimant,  who  caused  her 
to  be  registered  in  his  name  at  the  British  consulate  at  Havana,  and 
re-christened  her  the  M.  S.  Perry.  A  bill  of  sale  was  given  by  McKay 
to  McLenuan,  specifying  the  nominal  consideration  of  $;i2,00().  On  the 
13th  October,  1801,  she  sailed  from  Havana  with  the  ostensible  destina- 
tion of  Nassau,  but  with  written  instructions  to  go  to  the  main-land  of 
Florida  and  there  land  Donald  MitKay,  a  son  of  the  former  owner,  who 
went  as  a  passenger,  together  th  several  negro  slaves  of  the  former 
owner,  McKay.  McKay,  senior,  himself  sailed  with  her  for  Nassau? 
holding  a  power  of  attorney  fiom  McLennan,  authorizing  him  to  collect 
the  freight  at  Nassau, 

She  was  captured  on  the  night  of  the  loth  October,  at  a  point  between 
the  Dry  Tortugasand  the  coast  of  Florida,  being  headed  for  the  western 
coast  of  the  peninsula  of  Florida,  and  in  a  position  quite  wide  of  the 
jiroper  course  to  Nassau,  and  separated  from  that  port  by  the  whole 
width  of  the  peninsula  of  Florida  and  the  waters  intervening  between 
that  peninsula  and  the  Bahamas.  She  was  taken  into  the  port  of  Phila- 
delphia, there  libelled  in  the  district  court,  condemned,  and  sold.  No 
appeal  was  taken  from  the  judgment  of  the  prize  court;  but  the  com- 
mission held,  as  has  been  already  stated,  the  reasons  assigned  for  the 
failure  to  appeal  sufficient.  The  proofs  taken  before  the  prize  court 
were  not  put  in  evidence  before  the  commission. 

From  the  testimony  takeu  before  the  commission,  it  appeared  that 
McLennan  was  a  merchant's  clerk  in  Havana,  not  engaged  in  sliipping, 
and  owning  no  interest  in  any  other  ves-sel  than  the  M.  S.  Perry.  When 
examined  himself  as  a  witness,  McLennan  refused  to  say  whether  he 
possessed  any  property  or  money  to  enable  him  to  make  such  a  purchase; 
but  it  appeared  that  he  gave  McKay  his  promissory  notes  for  the  amount 
of  the  purchase-money  at  six,  twelve,  and  eighteen  months,  without  any 
security  for  their  payment  by  mortgage  on  the  vessel  or  otherwise.  It 
did  not  appear  that  anything  had  ever  been  paid  on  the  notes ;  and  the 
claimant,  when  asked  on  cross-examination  whether  they  had  ever  been 
paid,  declined  to  answer.  McKay  remained  in  the  sole  actual  nianage- 
nient  of  the  vessel  after  the  sale,  and  emi)loyed  the  captain,  the  chief 
engineer,  and  the  ship  broker  who  obtained  her  freight.  McKay  also 
held  a  power  of  attorney  from  McLennan  to  recover  and  receive  what- 
ever iudemuity  or  compensation  should  bo  awarded  by  the  commission 


P} 

•''T./^' 


'i^'; 


"1 
1  >' 


nrr- 


124 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


lil' 


I  i   I 


ii 


\  I 


fi< 


I-' 


)i^  i!-^ 


in  the  promises;  lie  verified  the  memorial  filed  by  the  claiimint;  and  he 
alone  appeared  to  have  procured  the  attendance  of  witnesses,  and  to 
have  prosecuted  the  case  before  the  commission. 

A  considerable  portion  of  the  car{>o  of  the  i\r.  S.  Terry,  upon  her 
capture,  consisted  of  arms  and  ammunition,  of  the  ownership  of  which 
no  proof  was  made,  and  lor  which  uo  claim  was  prosecuted  before  the 
commission. 

On  the  part  of  the  United  States  it  was  maintained  that  these  facts 
clearly  indicated  the  pretended  sale  by  McKay  to  McLennan  to  be  color- 
able merely,  and  that  upon  tiiem  the  claimant  had  shown  no  title  to 
recover ;  that  the  direction  to  the  vessel  to  land  young  McJvay  and  the 
nej»ro  slaves  on  the  coast  of  Florida  was  an  attempt  to  violate  the 
blockade,  aTid  Justified  the  capture;  that  the  omission  of  the  claimant 
to  produce  the  testimony  before  the  prize  court  left  the  judgment  of 
that  court  to  be  presumed  fully  sustained  by  the  evidence,  and  that  in 
the  absence  of  that  evidence  the  commission  could  not  declare  the  judg- 
ment erroneous. 

The  commission  unanimously  disallowed  the  claim. 

The  steamship  Granite  City  ;  Edward  Pembroke,  claimant,  Xo.  377. 

Tills  vessel  was  captured  on  the  22d  March,  181J;>,  on  a  voyage  from 
Nassau,  at  which  port  she  had  cleared  nominally  for  Saint  John's,  New 
Brunswick.  She  had  shortly  before  taken  a  cargo  of  merchandise  from 
Nassau,  through  the  blockade,  to  Wilmington,  N.  C,  and  succeeded  in 
getting  through  safely,  though  fired  at  by  the  blockaders,  and  had  also 
succeeded  in  running  out  a  cargo  of  cotton  through  the  blockade.  In 
his  deposition  inpreimratorio^hav  master,  after  repeated  refusals  to  state 
to  what  port  the  vessel  was  actually  bound  at  the  time  of  her  capture, 
finally  voluntarily  stated,  at  the  end  of  his  dei)Ositiou,  "  that  he  was 
bound  to  run  the  blockade  into  some  confederate  port  wherever  he  could 
get  in  ;  and  if  he  could  not  get  in,  to  go  elsewhere."  The  proof  was  un- 
questioned that  she  was  captured  in  the  prosecution  of  a  voyage  de- 
signed to  violate  the  blockade.  During  the  pursuit  by  the  captors,  and 
immediately  before  the  capture,  a  package  of  papers,  of  whose  contents 
the  captain  professed  himself  ignorant,  was  burned  by  his  orders. 

She  was  libelled  in  the  United  States  district  court  for  the  southern 
district  of  New  York,  and  a  decree  of  condemnation  was  rendere«l  by  that 
court.  (See  report  of  the  case,  Blatchford's  Prize  Cases,  355-357.)  Pend- 
ing the  proceedings  in  the  district  conrt,  and  before  the  decree  of  con- 
demnation, the  vessel  was  taken  for  the  use  of  the  United  States  at  an 
appraised  value,  under  the  United  States  statute  of  March  3, 18G3.  (12 
Stat,  at  L.,  759.'  The  cargo  was  sold  under  the  decree.  The  claimaTit 
alleged  himself  the  owner  of  the  vessel  and  cargo,  and  claimed  damages, 
$402,000,  besides  interest.  No  appeal  was  taken  from  the  decree  of  the 
district  court.  The  claimant  filed,  under  the  order  of  the  commission, 
a  statement  of  the  reasons  for  his  failure  to  appeal,  alleging  in  ettecfc 


AGENTS    REPORT. 


125 


tliiit  tlio  (locreeofcoiidcinniitiou  was  by  default,  tlio  claimant  not  liavin};^ 
ai)i)i'ared  in  the  prize  court,  and  that,  tlio  vessel  having  been  taken  by  the 
United  States,  he  had  no  funds,  or  means  of  securing  funds,  wheio- 
with  to  appeal. 

The  case  was  decided  without  a  specific  decision  upon  the  sufticiency 
of  these  reasons. 

On  the  |)art  of  the  claimant  it  was  contended  that  the  capture  was 
illegal,  in  that  the  vessel  had  received  no  warninjj,  and  that  shy  w;t.s 
captured  on  the  hijjh  seas,  an<l  not  in  the  act  of  violatinjj  the  blockade 
by  crossing  that  part  of  tlie  sea  which  had  been  conquered  by  the  block- 
ading power.  That  the  declarations  of  the  nuister,  as  to  the  object  and 
intent  of  the  voyage,  did  not  constitute  the  olfence  of  violating  the 
blockade,  nor  authorize  the  capture.  That  the  fact  of  the  former  run- 
ning of  the  blockade  was  not  to  be  taken  as  proof  of  the  illicit  charac- 
ter of  the  voyage  in  the  course  of  which  she  was  cai)tured.  That  the 
spoliation  of  papers  shown  did  not  constitute  suHicient  ground  of  con- 
denimition,  and  generally  thac  the  grounds  of  condemnation  assigned 
by  the  court  were  insuflicient  under  well-settled  princii)les  of  interna- 
tional law,  and  without  precedent  in  maritime  jurisprudence.  That  the 
prosecution  of  an  appeal  from  the  decision  of  the  prize  court  was  not 
necessary  to  lay  the  foundation  for  reclamation  before  the  commission. 
That  the  ai)propriation  of  the  vessel  to  the  use  of  the  United  States 
before  conden)nation  Mas  an  unlawful  act,  and  of  itself  gave  suHicient 
ground  for  reclamation.  That  that  act  deprived  the  prize  court  of 
jurisdiction,  tho  proceeding  being  <h  re»j,andthe  subject  of  the  litigation, 
therefore,  must  necessarily  be  before  the  court,  in  order  to  sustain  their 
jurisdiction. 

The  counsel  for  the  claimants  cited  the  case  of  the  bark  Jones,  before 
the  commission  under  the  convention  of  18r».'>,  between  the  United 
States  and  Great  Britain  ;  also  Kane's  notes  of  decisions  by  the  board 
of  commissioners  under  the  convention  with  France,  of  July  4,  1831 ; 
The  Euphrates,  1  Gall.,  451;  The  Diana,  2  i<L,d3;  Smart  ns'.  Wolfe,  3 
T.  K.,  329;  The  Eole,  C  Rob.,  223;  Jennings  vs.  Carson,  4  Cranch,  23; 
IJalleck's  Int.  Law,  i)p.  7(33,  704,  §§  10,  17 ;  The  Pizarro,  2  Wheat.,  227  ; 
Bernardi  vs.  Motteaux,  Doug.,  i581 ;  The  Wren,  0  Wall;  Fitzsimmons 
vs.  The  Newport  Ins.  Co.,  4  Cranch,  185 ;  Calhoun  r,s'.  The  Ins.  Co.  of 
Pa.,  1  Binney,  293;  The  Betsey,  1  Rob.,  280;  The  Vrow  Judith,  id, 
128 ;  The  Columbia,  tV7.,  130 :  The  Vrow  Joanna,  2  id.,  91 ;  The  Neptunus, 
id,  92 ;  The  Spiece  and  Irene,  5  id.,  70 ;  The  Shepherdess,  id.,  235 ;  The 
Apollo,  id,  250  ;  Vattel,  book  3,  §  117. 

The  commission  unanimously,  and  without  hearing  any  argument  for 
the  United  States,  disallowed  the  claim. 

The  bark  Empress ;  John  Loft,  mortgagee,  claimant,  No.  387. 
This  vessel  was  captured  off  the  mouth  of  the  Mississippi  River,  in 
November,  1801,  sent  into  the  port  of  New  York,  and  there  libelled  for 


JSI 


l.-'f 


■\'i}\ 


126 


AMERICAN-BRITISH    CLAIMS   COMMISSION. 


i     ! 


1%} 


n«l  judication  as  prize  in  tlio  (listiict  court.  Tliodistrict  court  adjndficd 
condeiunation  of  vessel  an«l  carjjfo,  (Blatclitbrd's  Prizes  Cases,  l?').)  Au 
appeal  was  taken  to  tlie  circuit  court  of  the  United  States  for  the 
same  district,  under  the  practice  then  existing-,  which  court  reversed  the 
judgment  of  the  district  court  and  awarded  restitution,  {id.,  05!),)  but 
without  costs  or  damages  to  the  claimants.  Pending  the  proceedings 
in  the  [M-ize  court  the  vessel  was  sold  ami  the  proceeds,  less  the  costs 
taxed  against  the  sauie,  were  paid  into  the  hinds  of  the  proctors  of  the 
claimants  in  tlie  prize  court,  Pearson  and  others,  the  owners  of  the  ves- 
sel. 

The  memorial  alleged  that  this  money  w*ns  attached  in  the  hands  of 
the  juoctors  by  (creditors  of  Pearson,  and  that  Pearson's  interest  in  the 
same  was  appropriate<i  to  the  payment  of  the  debts  due  from  him  to  the 
attaching  creditors.  The  claimant,  hoft,  alleged  himself  the  holder  of 
a  mortgage  given  by  the  owner,  Pearson,  to  him  to  secure  the  sum  of 
JC1,()0()  and  iriterest,  which  mortgage  was  wholly  due  and  unpaid.  It  al- 
leged thitL  tne  claimant  had  never  received  any  notic(!  of  the  capture  of 
the  bark,  except  as  he  leariuul  the  fact  from  the  owners  some  time  after 
the  capture,  and  that  ho  was  then  informed  by  the  owners  that  tiiey 
were  taking  the  necessary  and  proper  steps  in  the  law  courts  for  the 
purpose  of  protecting  their  interests. 

The  memorial  also  alleged  that  the  bark,  at  the  time  of  her  capture, 
was  worth  the  sum  of  £1,()(K),  and  that  it  became  largely  depreciated  in 
value  by  being  suffered  to  remain  without  repairs,  aiul  without  proper 
care  being  taken  of  it  during  the  time  it  was  detained  prior  to  the  sale. 
The  claimant  claimed  the  anjount  of  his  mortgage,  £1,000  and   interest. 

His  counsel  contended  that  the  decree  of  the  circuit  court  having  or- 
dered the  restitution  of  the  vessel  to  the  claimants  free  of  all  costs  and 
charges,  it  was  plain  that  that  decree  had  not  been  executed,  over 
$:i,0{)0  having  been  retained  from  the  proceeds  as  costs  and  charges,  and 
the  proofs  failing  to  show  that  the  remainder  of  the  proceeds  even  were 
ever  paid  over  in  any  maniu?r  under  the  decree  of  the  court. 

On  the  part  of  the  United  States,  it  was  contended  that  from  the  me- 
morial itself  it  appeared  that  the  proceeds  of  the  vessel  were  regularly 
paid  over  to  the  proctors  of  the  owners,  the  only  claimants  appearing 
in  the  prize  court,  excepting  only  coats  allowed  by  the  court  as  claim- 
ants' costs  out  of  t'le  fund.  That  it  further  appeared  from  the  memo- 
rial that  these  funds  thus  paid  over  to  the  proctors  were  appropriated  by 
vegularjudicial  process  to  the  payment  of  claims  of  attaching  creditors 
of  the  owners.  That,  if  the  claimant,  Loft,  as  mortgagee,  had  a  valid 
lien  upon  the  vessel,  that  lien  could  have  been  followed  against  the  pro- 
ceeds dne,  had  he  seen  fit  to  take  the  necessary  steps  for  that  purpose; 
and  that  behaving  failed  to  do  so,  his  lien  had  been  lost  by  his  own  neg- 
ligence. That,  as  to  the  sum  withheld  for  costs,  nothing  appeared  to 
show  that  that  sum  was  excessive  in  amount,  or  was  improperly  with, 
held;  and  that  if  such  had  been  the  case,  the  remedy  of  the  claimant 


.  p  m 


AGENTS    RKPORT. 


127 


or  of  liiM  iiiort;jiij?or,  who  reiJivscnttMl  liia  intorosts  lu'fore  tlio  pri/o  courf, 
WHS  aiijplt!  belong  tlio  courts  tlu'insi'lves.    That  the  wlioh'  case  showed 
110  ^ro;iii«l  ofititeriiatioiiiil  rechiinatioii  on  behalf  of  this  ehihiiaiit. 
The  coiuiiiissioii  nuanimoiisly  disallowinl  the  chiiiii. 

The  steaMishii>s  Sniibeain,  Ea^le,  (Treyhonnd,  Lilian,  Lacy,  Emma. 
Jlenry;  also,  tlie  t<teainers  Uanshee,  Tristram  Hhandy ;  Henry  Lafone 
and  .lohn  T.  Lawrence,  No.  3Sl),  claimants  ior  the  six  lirst  named,  and 
John  T.  Lawrence,  No,  4;51,  claimant  for  the  two  latter. 

These  vessels  were  (japtnred  at  <lifferent  times  in  lS(}ii,  ISO?,,  and  Lsr)4, 
by  war  vessels  of  the  I Tnited  States,  and  dnly  condemned  in  the  prize 
courts  of  orif^imd  jurisdiction.  No  question  was  nmd(^  but  that  they 
were  all  at  tiie  time  of  capture  engaged  in  voyai^cs  intended  for  viola- 
tion of  the  blockade.  No  appeals  were  taken  from  the  prize  courts  of 
orij^inal  Jurisdiction  before  which  they  were  respectively  condemned. 
Tlie  claimants  filed  their  reascns  for  failure  to  appeal,  in  wliiirh  they  al- 
leged poverty  and  destitution  of  means  to  defray  the  expense  of  appeal, 
ignorance  of  the  circumstances  of  the  capture,  imprisonment  of  the  mas- 
ters and  crews,  and  previous  adverse  decisions  by  the  Supreme  Court  in 
like  cases,  as  the  excuses  for  non-appeal. 

No  specific  ruling  w^as  made  by  the  commission  on  the  sufficiency 
of  these  reasons,  but  the  cases  were  submitted  on  their  nunits,  the  only 
claim  on  the  part  of  the  claimants  being  that  they  were  resi)e(!tively 
entitled  to  formal  notice  and  warning  by  a  blockading  vessel  before  they 
could  be  subjected  to  capture.  This  question  was  not  argued,  and  the 
commission  unanimously  disallowed  the  claims. 

The  brig  Geziena  Heligonda ;  Walter  Easton,  trustee,  claimant,  No. 
390. 

This  was  a  Dutch  vessel,  sailing  under  charter-party  to  the  firm  of 
Galbraith,  liedgate  &  Co.,  of  Glasgow  and  Matamoras,  for  a  voyage 
from  Liverpool  to  Matamoras  and  back.  She  was  captured  on  the  4th 
l)ecend>er,  1804,  on  the  outward  voyage,  within  the  blocka<K(l  waters  of 
the  coast  of  Texas,  and  oft"  th(^  port  of  Brazos  Santiago,  situated  soujc 
ten  to  fifteen  miles  north  of  the  mouth  of  the  liio  Grande ;  was  taken 
into  the  port  of  New  Orleans  and  there  libelled,  and  in  that  court  a 
decree  of  condemnation  was  rendered  on  the  2d  February,  1805.  The 
claimant  ajiplied  for  a  rehearing  in  the  district  court,  which  was  granted, 
and  further  proof  allowed.  Jausen,  the  Dutch  master  of  the  brig,  was 
then  reexamined  in  his  own  language,  with  the  aid  of  an  interpreter  j 
and  on  the  25th  March,  1805,  the  iudginent  of  condemnation  before 
rendered  was  annulled,  and  judgment  of  restitution  awarded,  certifying 
reasonable  cause  of  seizure,  and  refusing  costs  and  damages  to  claimant. 
From  this  decree  both  parties  appealed.  Captain  Janaen  representing 
the  owners  of  both  vessel  and  cargo.  The  Supreme  Court,  on  the  hearing, 
and  without  any  written  opinion,  unanimously  attirined  the  decree  in  all 
respects. 


I'!' ,!;Prn 


128 


AMKKICAN-mUTISII    CLAIMS    COMMISSION. 


TIm'  ('liiii)j  licrc  wijs  lnoiiylit  by  Kuston  as  tni.stc*^  imdcr  a  trust  ilccil 
i'ov  the  ItciK'lit.  «)t'<!i'(Mlitor.s  ('X«'(tiit('il  l>,v  IIk^  linn  of  (lallMnitli,  ll.Mlyiiti! 
cS:  Co.,  till'  alU'};'<'<l  owium's  of  tlui  car;;().  Samuel  J.  Iii'(l;j;at(',  one  of  the 
inciiilx'rs  of  tliiM  (Inn,  aii«l  who  was  also  tlti^  (iliiiiniint  in  (%ihi^  No.  4L'll, 
li«'r«.'inl)('ton'  reported,  and  one  of  the  heiielieiiiries  in  No.  l.')l),  iieri'after 
reported  under  the  head  of  th«^  I'eterhotl",  appeared  to  be  a  eiti/enof  the 
United  Htatcs.  The  vessel,  when  llnst  schmi,  was  not  oidy  within  the 
bloeUa(h'd  waters  of  Texas,  biit  was  ai)parently  seekinjif  to  etleet  an  en- 
trance into  the  inlet  of  Ursi/os  .Santiajjo.  Kioni  the  proofs  taken  in  the 
l»rize  court,  how(!ver,  it  was  evident  that  there  was  no  intention  to  vio- 
hite  the  blockade,  and  that  Captain  .J;ins(Mi  was  seekinj?  to  citlect  this 
entrance  under  the  mistaken  impression  that  it  was  the  mouth  of  tlu^ 
Jiio  (Irande.  The  car^o  of  tlu^  vessel,  thon;jjh  containinj;  notliin;;'  stri(;tly 
contraband  of  war,  was  in  large  part  tlttecl  and  ai)i)arently  desiyneil 
for  the  confeilerate  markets. 

On  tho  part  of  the  United  States  it  was  contended  thnt  the  circum- 
stances under  which  the  vessel  was  ciiprured  sntlitiiently  justitled  the 
capture  as  one  of  "  probable  cause,"  and  tliat  no  <;round  existed  for  over- 
rulinji'  or  ([uestioning"  the  judgment  of  the  United  States  courts  upon 
the  case. 

On  the  part  of  the  claimant  it  was  insisted  that  a  proper  and  reason- 
able examination  of  the  books  and  papers  of  the  vessel,  together  with 
the  explaiKition  of  lier  position  given  by  her  ol1i(!ers,  ought  to  have 
fully  satistied  tho  captors  of  her  innocent  intent,  and  to  have  prevented 
her  detention  and  tidving  into  port  for  libel. 

The  commission  unanimously  disallowed  the  claim. 


'i 


:.|-!'! 


iiiii 


i.  .i-«.  1 


The  steamship  Adela;  A.rtliur  Bower  Forwood  and  .Tames  Dorrington, 
No.  3!)2,  claimants  for  the  vessel;  Arthur  Bower  Forwood  and  Will- 
iam Bower  Forwood,  No.  3!)3,  claimants  for  cargo. 

This  vessel  was  captured  on  the  7th  July,  18(»2,  near  the  island  of 
Abaco,  one  of  the  Bahama  Islands,  and  a  possession  of  Her  Britannic 
Majesty,  in  a  voyage  from  Liverpool  ostensibly  to  Nassau.  She  was 
taken  into  the  port  of  Key  "West,  and  there  libelled  in  the  district  court, 
and  a  decive  of  condemnation  of  both  vessel  and  cargo  was  there  ren. 
dered.  Tar  claimants  appealed  to  the  Supreme  Court  of  the  United 
States,  where  the  judgment  of  the  district  court  was  allirmed.  (See 
report  of  the  case,  G  Wall.,  200.) 

The  Adehi  was  a  small  side-wheel  steamer  of  light  draught,  fleet, 
■well  adapted  for  service  as  a  blockade-runner  and  for  short  trips  like 
those  between  Nassau  and  Charleston  or  Savannah,  but  unfit  for 
carrying  on  trade  in  voyages  of  the  length  of  that  from  Liverpool  to 
Nassau.  Her  cargo  on  the  outward  voyage  was  light,  consisting  only 
of  twenty  cases  of  Enfield  rifles  and  twenty-five  boxes  of  cartridges, 
which  had  been  discharged  at  Bermuda  before  her  capture,  and  of  some 


aoent's  rkport. 


129 


tlfty  packM;,'o.s  of  hoots  and  .slioos,  wliicli  wero  captured  andcondi'iiined, 
and  which  were  tlio  siibji'ct  of  the  chiim  in  ^'o.  IVX], 

This  claim  for  tlio  carp),  in  No.  393,  was  withdrawn  by  tho  clainiants 
by  leave  of  the  commission  after  the  completion  of  the  claimants'  proofs. 
In  No.  3!>2  proofs  were  taken  before  the  commission  in  addition  to 
those  taken  iit  the  pri/-o  court,  which  were  also  put  before  the  commis- 


81UM. 


The  position  of  the  Adtila,  when  first  summoned  by  the  capturing 
vessel,  as  well  as  when  actually  captured,  was  a  matter  of  dispute  upon 
the  facts  of  the  case,  the  w  itnesses  on  the  part  of  the  claimant  fjivin* 
evidence  tendinj''  to  show  that  when  first  summoned,  as  w«'ll  as  when 
actually  captured,  she  was  within  a  marine  league  of  the  shores  of  the 
island  of  Abaco,  while  the  evidence  on  the  part  of  the  defence  tended 
to  show  that  at  both  times  she  was  more  than  that  distance  from  the 
shore  and  upon  the  hifjfh  seas. 

On  the  part  of  the  claimant  it  was  contended  that  there  was  no  sulll- 
rient  proof  of  the  Adela  beinjif  en«ja<;ed  in  an  unlawful  voyaj;(^ ;  and 
also  that  the  capture,  beiny;  made  within  British  and  neutral  waters,  was 
unlawful  and  void,  and  the  owners  entitled  to  make  reclamation. 

On  the  part  of  the  [Jnited  States  it  was  maintained  that  the  pre- 
ponderance of  the  evidence  was  in  favor  of  the  lawfulness  of  the  cap- 
ture as  made  upon  the  high  seas,  and  not  in  the  neutral  waters  of  Great 
Britain. 

The  counsel  for  the  United  States  urged  that  the  doctrine  of  the- 
sovereignty  of  the  i)r()prietary  nation  over  the  sea  for  a  njarine  league* 
from  the  shore  is  founded  in  the  idea  of  a  proper  and  necessary  pr«). 
tection  to  the  adjacent  coasts,  and  to  the  vessels  resorting  to  them  for 
legitimate  trade.  That  in  its  original  inception  this  doctrine  never 
included  the  idea  that  a  vessel  engaged  iw  an  unlawful  voyage  might; 
protect  herself  from  capture,  to  which  she  would  be  subject  on  the  high' 
seas,  by  merely  skirting  the  coast  of  a  harborless  and  substantially 
uninhabited  island,  such  as  the  island  of  Abaco.  That  although  strictly 
and  technically  the  coast  of  such  an  island  might  be  within  the  pro- 
tection of  the  rule,  it  was  only  technically  so;  and  that  where  a  claim' 
is  set  up  for  the  protection  of  a  vessel  actually  engaged  in  an  unlawful 
voj'age,  and  claiming  a  capture  otherwise  lawful  to  be  made  nidawful 
by  reason  of  being  within  a  marine  league  of  the  shore  of  such  an 
island,  a  judicial  tribunal  should  require  strict  and  conclusive  proof  to 
bring  the  vessel  within  the  technical  rule,  and  to  satisfy  them  that  the 
neutrality  of  the  proprietary  nation  had  been  in  fact  violated.  That 
the  burden  of  proof,  therefore,  devolved  strictly  and  onerously  ui)on  the 
claimants;  and  that  on  the  evidence  appearing  in  this  case  it  would  be 
unjust  to  resolve  any  doubts  which  the  commission  might  httvein  thia> 
regard  iu  favor  of  the  claimants. 

The  claim  was  unanimously  disallowed. 
9  H 


i>, 


I 


1-:^ 


4  n 


130 


AMKRICAN-BRITISH    CLAIMS    COMMISSION. 


li  ■ 


! ; 


The  bark  Iliiiw'atlia;  Miller  &  Mosman,  No.  308,  and  Ezokiel  McLeod, 
assignee,  No,  3!)(),  claimants  for  the  vessel  ;  Watkiiis  &  Leigh,  No. 
400  ;  Dalgetty,  DuCroz  &  Co.,  No.  401 ;  William  T.  Marshall,  No.  402, 
HJid  the  executors  of  Charles  Mciiwen,  No.  45'2,  elaiinatits  for  cargo. 

The  Hiawatha  was  captured  by  the  United  States  blockading  tleet,  in 
Hampton  Roads,  at  the  month  of  the  James  River,  on  the  liOtli  May, 
1801,  in  attempting  to  pass  through  the  blockading  fleet  on  an  outward 
voyage  fiom  Richmond,  Va.,  for  Liverpool.  She  was  taken  into  the 
port  of  New  York,  and  vessel  and  cargo  there  libelled  in  the  United 
States  district  court,  and  condemned.  (See  report  of  the  cast  in  that 
court,  IJhitchford'a  Prize  Cases,  p.  1.)  On  appeal,  first  to  the  circuit 
court  and  thence  to  the  Supreme  Court,  the  decree  of  the  district  court 
was  aflirmed,  the  opinion  of  the  Supreme  Court  being  delivered  by  Mr. 
Justice  Grier,  and  a  dissenting  opinion  being  read  by  Mr.  Justice 
Nelson,  in  wiiich  Chief  Justice  Taney  and  .Tustices  Catron  and  Clifford 
concurred.  (See  re])ort  in  the  Supreme  Court  under  title  of  "  The  Prize 
Cases,"  2  Black,  635  to  099.) 

This  was  one  of  the  rtrst  vessels  captured  during  the  war,  and  one  of 
the  first  upon  the  validity  of  whose  capture  adjudications  were  had  in 
the  prize  courts  of  both  original  and  appellate  jurisdiction.  In  the 
Supreme  Court,  where  tl)e  case  was  argued  in  connection  with  those  of 
several  other  vessels  captured  about  the  same  time,  and  involving  to 
some  extent  the  same  general  principles,  the  question  of  the  validity 
of  t)ie  blockade  established  under  the  President's  proclamations  of  10th 
and  27th  Aprd,  18G1,  (12  Stat,  at  L.,  1258,  1259,)  and  that  of  the  lia- 
bility of  the  property  of  persons  domiciled  within  the  insurrec-tionary 
States  to  capture  on  the  high  seas  as  enemy'3  property,  were  elalu)rately 
argued.  The  majority  of  the  court  sustained  the  validity  of  the  block- 
iwle  and  the  right  of  capture  of  property  of  citi/:ens  of  the  insurrec- 
tionary States  upon  the  high  seas  as  enemy's  property.  The  minority 
of  the  court  held  "  that  no  civil  war  existed  between  the  United  States 
and  the  States  in  insurrection  till  recognized  by  the  act  of  Congress  of 
13th  July,  18GI,  (12  Stat,  at  L.,  255  ;)  Mmt  the  President  of  the  United 
States  does  not  possess  the  power  under  the  Constitution  to  declare 
war  or  recognize  its  existence  within  the  meaning  of  the  law  of  nations, 
which  carries  with  it  belligerent  rights,  and  thus  change  the  country 
and  all  its  citizens  from  a  state  of  peace  to  a  state  of  war;  that  this 
power  belongs  exclusively  to  Ihe  Congress  of  the  United  States,  and, 
consequently,  that  the  President  had  no  power  to  set  on  foot  a  block- 
ade under  the  law  of  nations  ;  and  that  the  capture  of  the  vessel  and 
cargo  in  this  case  and  in  all  cases  before  us  in  which  the  capture  occurred 
before  the  13th  July,  1801,  for  breach  of  blockade  or  as  enemy's  prop- 
erty,  are  illegal  and  void,  and  that  the  decrees  of  condemnation  should 
be  reversed,  and  the  vessel  and  cargo  restored."    (2  Black,  008,  GOQ.) 

The  case  of  the  Hiawatha  was  this :    She  sailed  from  Liverpool  on 
the  11th  February,  1861,  with  a  cargo  of  salt  for  Richmond,  Va.,  thence 


AGKXT  S   KEPORT. 


131 


to  take  cargo  back  to  Liverpool.  She  passed  Ilainpton  Roads,  at  the 
mouth  of  the  James  River,  on  the  23(1  April,  and  arrived  at  City  l*oint, 
the  port  of  Richmond,  a  few  miles  below  that  city  on  the  James  River, 
on  the  29tii  April.  She  completed  the  discharge  of  her  outward  cargo 
on  the  10th  May  ;  immediately  comiMenced  lading  with  her  return 
cargo,  (consi-sting  principally  of  tobacco,)  ctud  completed  this  lading  on 
the  14th  or  15th  May.  On  the  16th  she  weighed  anchor  and  attempted 
to  go  to  sea  without  pilot  or  steam-tug,  but  was  prevented  by  head- 
winds. On  the  17th  a  tug  attempted  to  take  her  out  of  harltor,  but 
was  prevented  by  the  breaking  of  the  tow-line.  On  the  18th  sJie  was 
taken  in  tow  by  another  steamer  and  towed  down  the  river  to  within 
about  twenty  miles  of  Hampton  Roads.  From  this  point  she  floated 
down  with  the  tide  toward  the  Roads,  and  on  the  2(>tli  was  boiirded 
by  an  officer  from  a  United  States  blockading  vessel,  v.ho  endorsed 
upon  her  register  this  notice  : 

This  vessel  (the  Hiawatha)  has  been  boarded  by  the  United  States  blockading 
squadron,  and  warned  uot  to  enter  any  port  in  Virginia  or  south  of  it. 

S.  H.  BROWN, 
Blockading  Officer,  Vititvd  States  Steamer  Star. 
May  20.  1861. 

On  the  same  day,  and  while  still  floating  with  the  tide  in  Hampton 
Roads,  she  was  seized  by  the  United  States  war-steamer  Minnesota,  and 
thereafter  taken  into  port  and  libelled,  as  above  recited. 

President  Lincoln's  proclamation  estjiblishing  blockade  of  the  ports 
of  Virginia  was  issued  27th  April,  1861,  (12  Stat,  at  L.,  1259.)  Under 
that  proclamation  the  blockade  of  the  ports  of  Virginia  upon  the  Chesa- 
peake Bay  and  the  .Fames  River  was  actually  established  by  Commo- 
dore Peudergrast,  and  a  proclamation  made  of  same  on  the  30th  April. 
On  the  8th  May,  Lord  Lyons  communicated  to  Mr.  Seward  a  letter  from 
the  British  consul  at  Richmond,  dated  5fch  May,  in  which  the  consul 
had  said  to  Lord  Lyons  : 

Tliero  are  parties  hero  about  to  load  the  British  ship  Hiawatha  at  City  Point  for 
Liverpool,  nnder  the  impression  that  she  will  be  allowed  free  egress  by  the  blockading 
squadron,  I  have  told  persons  who  arc  here  representing  the  owners  of  the  ship  that 
I  see  no  difficulty  to  the  ship  leaving  in  ballast ;  but  to  this  they  will  not  cf)nsent,  as 
the  ship  oauio  here  expressly  from  Liverpool  at  a  nominal  freight  to  load  a  reniunerai.ive 
cargo  back. 

Lord  Lyons  stated  to  Mr.  Seward  the  hardship  of  the  case  of  the  Hia- 
watha, in  case  she  should  be  compelled  to  return  home  in  ballast  in  con- 
sequence of  the  blockade,  of  which,  of  course,  her  owner  j  could  have 
had  no  knowledge  when  they  sent  her  out,  and  submitted  the  case  for 
the  consideration  of  the  Goverum'.rit  of  the  United  States,  requesting  an 
early  answer. 

]\Ir.  Seward  answered  on  the  9th  May,  enclosing  a  letter  from  the  Sec- 
retary  of  the  Navy,  in  which  he  said  : 

Fifteen  days  have  been  spHcifled  as  a  limit  for  neutrals  to  leave  the  ports,  after  ac- 
tual blockade  has  conitneuced,  with  or  without  cargo,  aud  there  are  yet  remaiuiug  five 


132 


AMERICAN-BRITISH   CLAIMS   COMMIS.SION. 


^Ill 


\      ill 


li  1 4 


or  six  cliiys  for  nentraU  to  leave.     With  proper  diligence  on  the  part  of  persons  inter- 
ested, I  see  no  reason  for  exemi)tion  to  any.. 

Lord  Ljons  again  wrote  Mr.  Seward  on  the  9tb  May,  acknowledging 
tbe  receipt  of  Mr.  Seward's  letter,  and  saying  : 

In  order  to  avoid  all  possible  mistake  with  regard  to  the  Hiawatha,  as  well  as  to 
future  cases  of  the  same  kind,  I  venture  to  request  you  to  iKform  nie  whether  I  am 
right  in  concluding,  from  the  statement  just  quoted,  that  the  date  of  the  shipment  of 
the  cargo  is  immaterial,  and  that  vessels  leaving  the  ports  betbre  the  expiration  of  the 
fifteen  days  will  be  allowed  to  proceed  with  their  cargoes,  whether  such  cargoes 
were  shipped  before  or  after  the  actual  beginning  of  the  eft'ective  blockade. 

This  letter  was  answered  by  Mr.  Seward  on  May  11,  enclosing  another 

letter  from  the  Secretary  of  the  Navy,  as  follows : 

In  answer  to  Lord  Lyons's  letter  of  the  9th  instant,  I  have  the  honor  to  inform  you 
that  neutral  vessels  will  be  allowed  fifteen  days  to  leave  port  after  the  actual  estab- 
lishment of  the  blockade,  whether  snch  vessels  are  with  or  without  cargoes. 

Lord  Lyons  responded  to  Mr.  Seward  on  May  11,  thanking  him  for  bis 
prompt  information,  reciting  tbe  correspondence,  and  saying : 

I  have,  consequently,  instructed  Her  Majesty's  consuls  to  advise  mastere  of  British 
vessels  that  they  are  at  liberty  to  take  cargo  on  board  as  wei  ncei-  as  before  the  com- 
mencement of  the  blockade,  and  that  they  will  be  allow-  .  9",i  .  lays  to  go  to  sea, 
•whether  with  or  without  cargoes,  and  whether  their  carg'  ,'  b'^  1  i^^ped  before  or  after 
the  actual  commencement  of  the  efi'ective  blockade. 

On  tbe  same  day  Lord  Lyons  sent  to  the  British  consuls  at  Rich- 
mond and  other  ports  a  circular,  as  follows  : 

Neutral  vessels  will  be  allowed  fifteen  diiys  to  leave  port  after  the  actual  commence- 
ment of  the  blockade,  whether  such  vessels  aie  with  or  without  cargoes,  and  whether 
the  cargoes  were  shipped  before  or  after  the  commencement  of  the  blockade. 

He  also  sent,  on  tbe  same  day,  a  dispatch  to  Kear- Admiral  Sir  A. 

JMilne,  of  Her  Majesty's  navy,  enclosing,  with  other  documents,  copies 

of  the  procliunation  of  tbe  President  of  April  27,  of  the  notice  of 

blockade  by  Commodore  Pendergrast  of  April  30,  and  saying: 

The  general  result  of  inquiries  made  by  me  or  other  foreign  ministers  ho  o,  as  to  the 
manner  in  which  the  blockade  will  be  conducted,  appears  to  be — 

1.  That  the  date  of  the  commencement  of  the  blockade  in  each  loca"l;7  v.i'J  !:3  fixed 
by  the  issue  of  a  notice  by  the  commanding  officer  of  the  s>,iia('|]  t  npi;  !  ''ed  to 
blockade  it.  It  does  not,  however,  appear  to  be  intended  that  snch  lu.,  «tti,)]l  be 
otficially  conunuuieated  to  the  governments  of  neutral  nations,  or  to  the''  *.^  ;  •  ita- 
tives  in  this  country. 

2.  That  fifteen  days  from- the  beginning  of  the  effective  blockade  will  be  allowed,  in 
every  case,  for  neutral  vessels  already  in  port  to  put  to  sea. 

'.i.  That,  until  tlie  fifteen  days  have  expired,  neutral  vessels  will  be  allowed  to  come 
out  with  or  without  cargoes,  and  whether  their  cargoes  were  shipped  before  or  after  the 
actual  commencement  of  the  blockade. 

4.  That,  except  in  the  last-nieni.oued  particulav,  the  ordinary  rules  of  blockade  will 
be  strictly  enforced. 

5.  The  armed  vessels  of  the  neutral  states  will  have  the  ^h*  t  >  •■  >t  r  .and  depart 
from  the  blockaded  ports. 

I  continue  to  bo  of  opiuiou  that,  provided  the  blockade  be  effective  and  oe  carried  ou 
in  conformity  with  the  law  of  nations,  we  have  uo  other  course,  iu  the  abseuce  of  posi- 
tive instructions  from  Her  Majesty's  gov.^rni'i'jui,,  'hau  to  recognize  it. 


AGENTS    REPORT. 


133 


1:3  fixed 

"  -lid  to 

H"L;fll  be 

'"    .1  ta- 


in the  ilecisiou  of  the  cause  in  tbe  district  court,  Judge  Betts  ex- 
pressed the  opinion  that  the  correspondence  between  Mr.  Seward  iuid 
Lord  Lyons  did  not  constitute  any  reh^xation  of  the  general  rule  limiting 
the  right  of  departure  of  neutral  vessels  from  a  blockaded  port  to  siK!h 
cargo  as  had  been  laden  before  receiving  notice  of  the  blockade ;  so 
that,  if  the  Hiawatha  had  departed  within  the  fifteen  days  allowed  foi' 
departure  after  the  establishment  of  the  blockade,  she  would  not  have 
been  entitled  to  take  ont  the  cargo  laden  after  knowledge  of  tiie  block- 
ade, (Blatchford's  Prize  Cases,  p.  20.)  The  Supreme  Court,  however, 
distinctly  overruled  Judge  Betts  upon  this  point,  saying: 

After  a  careful  examination  of  the  correspondence  of  the  State  and  Navy  Depart- 
inents,  fonnd  iu  the  record,  we  are  not  satislied  that  the  British  minister  erred  in  the 
fonstructiou  he  put  upon  it,  which  was  that  a  license  was  given  to  all  vessels  in  the 
blockade*!  ports  t(»  dot)art  with  their  cargoes  within  fifteen  days  -ifter  the  blockade  was 
established,  whether  the  cargoes  were  taken  on  board  before  or  after  the  notice  of  tbe 
blockade.  All  reasonable  doubts  should  be  resolved  in  favor  of  the  claimants.  Any  other 
course  would  be  i'x^anKisteut  with  the  right  admiuistratiou  cf  the  law  and  the  charac- 
ter of  a  j  ust  government. 

The  British  consul  at  Richmond  gave  to  the  master  of  the  Hiawatlm, 
on  the  loth  May,  a  certificate  stating  that,  according  to  the  best  infor- 
mation attainable  by  him,  the  effective  blockade  at  the  mouth  of  the 
James  Kiver  began  on  the  2d  May.  After  the  capture  of  the  vessel,  cor- 
respondence ensued  between  Lord  Lyons  and  Mr.  Seward,  in  which 
Lord  Lyons  earnestly  recommended  the  case  of  the  Hiawatha  to  the 
favorable  consideration  of  the  United  States  Government,  saying  that 
it  appeared  "that  the  master  of  this  vessel  was  innocent  of  any  inten- 
tion to  break  the  blockade,  and  tuat  his  not  having  passed  the  blocikad- 
ing  squadron  earlier  was  due  to  erroneous  information  or  unavoidable 
'detentions."  lie  also  called  attention  to  the  cases  of  the  Haxall  and 
the  Octavia,  and  expressed  the  hope  that  the  Government  of  the  United 
States  -vonld  be  disposed  to  extend  to  the  Hiawatha  the  same  favor 
which  had  been  shown  to  those  vessels. 
In  another  letter  to  Mr.  Seward,  Lord  Lyons  said : 

I  do  not,  of  course,  consider  myself  competent  to  make  iiny  comments  upon  tho 
decision  of  Jndge  Betts  on  questions  of  law;  nor  do  I  ground  my  present  application 
iipon  h'gal  considerations  at  all.     My  desire  is,  in  conformity  with  tiie  learned  judge's 
own  suggestion,  to  obtain  relijf  for  the  owners  of  tli;;  Hiawatha  by  an  app  ial  to  the 
ecpiity  and  indulgence  of  the  Goverumeut  of  tho  United  States, 

And  agaii  : 

That,  by  giving  reiior  to  the  memorialists,  the  ITnited  States  Government  would 
evince  a  spirit  of  comity  and  generosity  which  would  be  highly  api)r(!ciated  by  the 
goveruuHint  of  Her  Majesty, 

In  the  cases  of  the  Tropic  Wind,  the  Haxall  aiul  the  Octavia,  those 
were  vessels  captured  about  the  same  time  with  the  Hiawatha,  and 
under  similar  circumstances  had  been  released  by  order  of  the  Govern- 
ment, on  the  application  of  parties  interested  or  their  respective  govern- 
ments, the  Tropic  Wind  after  judgment  of  condemnatiou,  and  the 
Haxall  and  Octavia  beforejudgmeut. 


} 


C^':'' 


'i-it 


•.f 


li 


ii 


1    in!''ri'' 


134 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


Ill  cases  No.  400  and  401,  the  memorials  failed  to  show  the  respective 
claimants  the  owners  of  the  portions  of  the  cargo  claimed  by  them,  but 
showed  those  portions  respectively  to  be  the  property  of  one  David 
Duulop,  a  resident  of  Petersburgh,  Va.,  who  was  shipping  them  to  the 
claimants  in  performance  of  executory  contracts  between  him  and  the 
respective  claimants  for  that  purpose. 

lu  the  ca^e  of  Wm.  T.  Marshall,  No.  402,  the  memorial  showed  that 
the  claimant  was,  at  the  time  of  the  capture,  domiciled  in  Richmond,  Ya. 

Demurrers  were  interposed  in  those  cases,  specifying  these  respective 
grounds. 

In  the  ease  of  McE  wen's  executors,  No.  452,  the  proofs  showed  the 
testator  domiciled  at  Kichmond  down  to  .about  the  time  of  the  capture  ; 
but  about  that  time,  the  proofs  failing  to  show  whether  shortly  before 
or  shortly  after,  he  returned  to  the  domicile  of  his  nativity  in  Great 
Britain,  where  he  ever  after  remained  until  his  death. 

On  the  part  of  the  claimants  it  was  contended  that,  irrespective  of  the 
'  'ct  rule  of  prize  law  applicable  totiie  case  of  the  Hiawatha,  the  case 
>  one  where  in  "justice  and  equity  "  the  claimants  were  entitled  to 
indemnity,  being  without  intentional  fault,  and  morally,  at  least,  inno- 
cent of  any  intention  to  violate  the  blockade,  or  do  any  illegal  or  pro- 
hibited act ;  that  the  master  of  the  vessel  had  used  the  utmost  diligence 
in  lading  his  vessel  Avithiu  the  time  which  he  was  informed  he  was  en- 
titled to  consume  in  lading  it,  and  had  been  i)revented  from  reaching 
Hampton  lloads  within  the  time  limited,  by  causes  beyond  his  control ; 
that  he  ought  not  to  be  made  to  suffer  for  the  accidents  that  had  de- 
juived  him  of  the  services  of  a  pilot  and  the  aid  of  steam,  nor  for  the 
winds  that  retarded  the  progress  of  his  ship  to  sea,  nor  by  reason  of  the 
master's  failure,  in  the  emergency  of  an  unexpected  Avar,  to  understand 
the  exact  legal  signiticance  of  proclamations  of  the  President,  and  the 
legal  c'.nsecpiences  of  blockade ;  that  at  the  time  of  the  capture  no  war 
existed  between  the  United  States  .and  the  Confederate  States,  by  virtue 
of  which  the  blockade  of  the  confederate  ports  could  be  lawfully  estab- 
lished :  that  no  such  war  could  be  taken  as  existing  until  recognized  by 
the  act  of  Congress  of  13th  July,  18GI ;  that  consequently  the  President 
had  no  power  to  set  on  foot  a  blockade  of  the  ports  in  question  under 
the  law  of  nations  prior  to  the  13th  July,  1801 ;  that  the  capture  of 
the  Hiawatha  and  her  cargo,  whether  for  breach  of  blockade  or  as  en- 
emy':, property,  was  illegal  and  void  ;  and  that  by  the  terms  of  the  Presi- 
dent's proclamation  the  vessel  was  entitled  to  a  warning  indorsed  on  her 
l)apers  by  an  ofiicer  of  the  blockading  force,  and  was  not  liable  to  cap- 
ture, except  for  an  attempt  to  leave  port  after  such  warning. 

As  part  of  his  argument,  the  counsel  for  the  claimant  cited  and 
adopted  the  dissenting  opinion  of  Mr.  Justice  Nelson  in  "  The  prize  cases," 
(2  Black,  682.)  He  cited  also  the  case  of  the  Neptuuus,  (3  Hob.,  110, 
173 J  and  Medeiros  vs.  Hill,  8  Biug.,  231.) 


AGENT  S    'REPORT. 


135 


Oq  the  part  of  the  United  States  it  was  contended  that,  as  a  matter  of 
fact,  war  actually  existed  between  the  United  States  and  tlie  Confede- 
rate States  at  and  from  the  dates  of  the  respective  proclamations  of 
blockade  by  the  President  on  the  lOtli  and  27th  April,  18G1,  Virginia 
having  seceded  by  ordinance  of  her  convention  on  the  20th  xVpril,  and 
having  .actually  and  formally  Joined  the  Confederate  States  on  the  27th 
April.  That,  war  thus  existing,  the  establishment  of  a  blockade  was 
within  the  constitutional  powers  of  the  President  as  the  chief  executive 
officer  of  the  United  States  and  commander-in-chief  of  the  Army  and 
Navy.  That  :;ertainly  as  to  foreign  nations  his  acts  were  to  be  regarded 
fully  and  completely  as  the  acts  of  the  United  States,  and  the  establish- 
ment of  a  blockade  by  him  was  its  establishment  by  the  nation.  That 
the  validity  of  tlie  blockade  so  established  by  him  was  un«pu^stioned 
by  the  Congress,  which  met  after  the  issuing  of  the  proclanmtion, 
and  while  it  was  in  the  course  of  enforcement;  and  that  it  was  expressly 
legalized  by  the  statute  of  Gtli  August,  18G1,  which  legalized  and  made 
valid  the  President's  acts,  proclamations,  and  orders,  after  the  4tli 
March,  18G1,  "resi)ecting  the  Army  and  Navy  of  the  United  States  *  * 
with  the  same  eli'ect  as  if  they  had  been  issued  and  done  under  the 
previous  express  authority  and  direction  of  the  Congress  of  the  United 
States."  (12  Stat,  at  L.,  o20.)  That  the  validity  of  this  blockade  had 
been  fully  recognized  by  the  British  government  as  well  as  all  other 
foreign  powers  as  effectual  and  valid;  citing  the  correspondence  of  Lord 
Lyons,  above  recited,  and  Prof.  Bernard's  "Neutrality,"  t&c,  p.  2;JL  if. 
That  the  proelamation  of  the  President  did  not  modify  or  assume  to 
»?!iodify  the  law  of  blockade  as  held  by  the  rules  of  international  law  ; 
and  that  it  was  only  in  case  of  a  vessel  innocently  approaching  the 
blockaded  i)ort  without  notice,  that  she  was  entitled  to  be  duly  warned  off 
before  l»ecoming  a  sul-  ect  of  capture;  citing  on  this  point  the  (Colum- 
bia, 1  liob.  15(5;  the  Vrow  Judith,  id.,  152;  the  Betsey,  W.,  332 ;  the 
Adelaide,  2  id.,  Ill;  the  Calypso,  <>/.,  298 ;  the  Tutela,  0  id.,  181;  3 
Phillimore,  3!>1 ;  Prof.  Bernard's  Neutrality,  p.  23(J.  Tiiat  the  misappre- 
hension of  legal  rights  by  the  master  of  the  Hiawatha  could  not  be  taken 
into  account  as  excusing  his  action  in  attempting  to  pass  out  through 
the  blockade  after  the  expiration  of  the  time  allowed  him  by  the  rules  of 
international  law,  and  by  the  specific  notice  contained  in  the  diplomatic 
correspondence  above  recited  for  that  purpose.  And  that  the  accidents 
by  which  the  claimants  attempted  to  excuse  the  failure  of  the  Hiawatha 
to  leave  within  the  permitted  time  could  not  be  held  to  make  her  de- 
parture lawful,  or  exempt  her  from  capture. 

As  to  the  argument  of  the  claimant's  counsel  in  favor  of  the  rights  of 
the  claimant  before  this  commission,  under  general  princii)les  of  justice 
and  equity  outside  of  and  beyond  thopritjciples  of  international  law  as 
held  by  the  i)rize  courts,  the  counsel  for  the  United  States  held  the 
same  general  line  of  argument  as  above  reported  under  the  case  of  the 
Sir  William  Peel,  No.  243 ;  and  insisted  that  the  fact  of  the  Government 


t  'is- .'* ' 


l^^r^ 


my\; 


136 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


r! 


li* 


of  tlio  Uiiited  States  having  remitted  its  lawful  claims  for  its  own  rea- 
80U8  in  the  cases  of  the  Tropic  Wind,  the  Octavia,  and  the  ilaxall,  cer- 
tainly could  not  be  taken  as  any  reason  for  enforcing  as  matter  of  right 
the  same  generosity  in  the  caseof  the  Hiawatha. 

The  coiiunissiou  unanimously  disallowed  the  claims  of  Watkins  & 
Leigh,  No.  400,  and  of  Dalgetty,  Du  Croz  &  Co.,  No.  401,  on  the.ground 
that  the  ownership  of  the  portions  of  the  cargo  claimed  by  them  re- 
spectively did  not  appear  to  be  in  them  but  in  a  citizen  of  the  United 
States.  They  also  unanimously  disallowed  the  claim  of  Wm.  T.  Mar- 
shall, No.  402,  it  appearing  that  he  was  permanently  domiciled  in  the 
city  of  Kichmond  within  the  enemy's  country. 

It  made  awards  in  favor  of  the  claimants  for  the  vessel  in  Nos.  398 
and  390,  amounting  to  $25,309;  and  an  award  in  favor  of  the  execu- 
tors of  jVIcEwen,  No.  452,  in  respect  of  McE wen's  por-tion  of  the  cargo, 
for  $0,090;  Mr.  Commissioner  Frazer  dissenting  from  these  three  awards. 

The  steamer  Peterhoif;  Spence  &  Fleming,  No.  405,  claimants  for 
the  vessel;  James  Wetherell,  No.  400 ;  Willian:  Almond,  No.  407;  Al- 
fred Wilson  and  others,  No.  408;  the  same.  No.  409;  Joseph  Si)ence, 
No.  410 ;  Alfred  Lafone,  No.  411 ;  Charles  S.  Osborne  and  others.  No. 
412 ;  Anna  Louch,  No.  413  ;  Frederick  D.  Frost  and  others.  No.  414  ; 
Thomas  P.  Austin,  No.  415;  James  Ilolgate,  No.  410;  Jarman  & 
Smith,  No.  417:  Welch,  Margetson  &  Co.,  No.  422;  WiK«on  &xirm- 
strong.  No.  423;  Grant,  Brodie  &  Co.,  No.  424;  Iline,  Mundella  & 
Co.,  No.  425 ;  Krnest  Ellsworth,  No.  420;  Johti  Ellsworth,  No.  438 ;  Wal- 
ter Easton,  trustee.  No.  439;  Robert  Sinclair,  No.  440;  Tiiomas  Edg- 
ley  &  Co.,  No.  441 ;  claimants  for  cargo. 

This  vessel  was  captured  on  the  25th  February,  1803,  in  the  Atlantic 
Ocean,  oil'  the  Island  of  St.  Tiiomas,  taken  into  the  port  of  New  York, 
and  there  libelled  as  prize  in  the  United  States  district  court.  A  decree 
of  condemnation  passed  in  that  court  against  both  vessel  and  cargo. 
(See  Blatchford's  Prize  Cases,  381, 403,  to  550.)  An  appeal  was  taken  to 
the  Supreme  Court,  which  court  reversed  the  decree  of  condemnation 
by  the  district  court,  except  as  to  a  small  portion  of  the  cargo,  found  by  that 
court  to  be  contraband  of  war,  and  intended  for  the  ultinmte  use  of  the 
enemies  of  the  United  States,  and  belonging  to  the  oiaimants  in  cases  Nos. 
408,  J09,  and  411,  and  except  also  so  much  of  the  remaining  cargo  of  the 
Peterhoff  as  belonged  to  the  owners  of  the  contraband  goods  thus  con- 
demned. The  cause  was  thereupon  remanded  to  the  district  court  by 
the  Supreme  Court,  with  directions  to  enter  a  decree  in  conformity  to 
the  opinion  of  the  Supreme  Court.  Pending  the  proceedings  in  the 
prize  courts,  the  vessel  was  taken  by  the  authorities  of  the  United 
States,  for  the  use  of  the  government,  under  the  statute  for  that  pur- 
pose above  referred  to  under  the  case  of  the  Granite  City,  No.  377. 
The  cargo  was  also  sold  by  order  of  the  district  court,  pending  the  pro- 
ceedings.   On  the  remanding  of  the  cause  to  the  district  court,  proofs 


AGENTS   REPORT. 


137 


wore  there  taken  as  to  the  portions  of  the  cargo  condemned  as  contra- 
band and  its  vaUie,  and  as  to  other  portions  of  tlic  cargo  and  their 
value  belonging  to  the  owners  of  the  contraband  cargo,  as  to  the  costs  of 
the  ca[)tors  chargeable  against  the  vessel,  and  as  to  the  claimant's  costs 
chargeable  against  the  ship,  and  the  condemned  and  uncondemned  cargo, 
and  these  costs  were  duly  apportioned  accordingly'.  The  amount  of 
the  appraised  value  at  which  the  ship  had  been  taken,  less  the  costs 
cliarged  against  Ler,  was  paid  over  to  her  owners.  The  proceeds  of  the 
uncondemned  cargo  were  also  paid  over  to  their  respective  owners,  less 
the  proportion  of  claimant's  costs  against  same,  which  costs  were  paid 
to  the  proctors  of  the  respective  claimants,  to  whom  thej'  were,  by  the 
tiual  decree,  allowed.  No  complaint  appeared  to  have  been  made  in 
the  district  court  as  to  the  allowance  or  apportionment  of  the  costs  and 
charges,  or  in  respect  of  the  appraised  value  at  which  the  United  States 
had  taken  the  vessel ;  and  no  question  in  respect  of  either  of  these  mat- 
ters was  taken  to  the  Supreme  Court  on  appeal.  By  stipulation  of  the 
counsel  for  the  respective  parties,  all  the  papers  relating  to  the  appraisal 
and  taking  of  the  vessel  by  the  United  States  were  omitted  from  the 
apostles  sent  up  to  the  Sui)reme  Court  on  appeal. 

The  claimants  in  iS^o.  405  claimed  about  £21,000,  besides  interest,  for 
the  alleged  value  of  the  vessel,  over  and  above  the  appraised  value  at 
which  she  was  takeu  by  the  United  States;  and  for  freight  and  i)a..  age 
money  which  they  would  have  been  entitled  to  receive,  and  costs  and 
expenses  sustained  b^'  them. 

The  claimants  in  Nos.  40S,  40D,  and  411  claimed  about  £0,000,  besides 
iuterest,  tiie  alleged  value  of  their  portions  of  tb'i  cargo  condemned, 
including  prospective  prollts  upon  the  sale  of  the  same  at  Matamoras,  and 
their  costs  and  expenses. 

The  claimants  in  the  remaining  cases  claime<l  about  £40,000,  besides 
interest,  for  the  alleged  value  of  their  portions  of  the  cargo,  including 
prospective  profits  ou  its  sale  at  Matamoras,  and  their  costs  aud  ex- 
penses respectively,  less  the  respective  amounts  received  by  them  from 
the  proceeds  of  the  cargo. 

The  proofs  showed  that  the  Peterhoff  sailed  from  London  for  the 
mouth  of  the  llio  Grande  in  January,  1803,  the  bills  of  lading  other  cargo 
specifying  the  same  as  destined  for  Matamoras,  and  to  be  taken  from  along- 
side the  ship  at  the  mouth  of  the  Kio  Grande.  Included  in  the  cargo  were 
some  thirty-two  cases  of  artillery  harness,  a  large  quantity  of  boots, 
described  in  the  invoices  as  "  artillery  boots,"  "men's  army  bluchers,"  &c. ; 
ami  eighty  bales  of  blankets  described  in  the  invoice  as  '•  government  reg- 
ulation gray  blankets."  Besides  those  portions,  which  were  held  by  the 
Supreme  Court  as  belonging  to  the  class  of  articles  "manufactured 
and  primarily  and  ordinarily  used  for  military  purposes  in  time  of  w^ar," 
and  so  contraband  when  destined  to  the  use  of  a  belligerent;  the  cargo 
included  large  quantities  of  iron,  steel,  nails,  leather,  and  drugs, 
including  1,000  pounds  of  calomel,  large  amounts  of  morphine,  205 


\''-0 


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11 

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138 


AMERICAN-BRITISH    CLAIMS   COMMISSION. 


pounds  of  chloroform,  and  2,040  onnces  of  quinine,  fill  jGfoods  in  special 
dentand  for  the  use  of  the  confederacy.  Much  of  the  cargo  was 
deliverable  to  order.  A  pacilcage  deposited  with  the  captain  by 
Mohl,  one  of  the  TexaTi  passenj^ers,  and  which  the  cai)tain  testified 
he  was  told  by  Mohl  contained  "  white  powder,"  but  which  the  mate  tes- 
tilied  api>eared  to  be  a  package  of  "dispatches,"  was  thrown  overboard 
by  order  of  the  captain  on  the  boarding  of  the  vessel  by  the  captors. 
Other  papers  were  at  the  same  time  burned  by  the  fireman  by  order  of  the 
captain.  The  firm  of  James  I.  Bennett  &  Wake,  London,  were  the  agents 
of  the  Peterhoif,  and  the  cargo  was  mainly  secured  through  then>.  A  cir- 
cular of  this  firm  was  proved,  dated  24th  November,  18(52,  in  which  they 
notified  their "'  friends  desirous  of  shipping  to  America"  that  tiiey  would 
dispatch  a  vessel  to  the  liio  Grande  about  1st  December;  that  the 
services  of  Mr.  Redgate,  Lloyd's  agent,  an  expert  in  cotton,  and  who  had 
been  a  resident  nearly  forty  years  in  Texas  and  Mexico,  had  been  secured, 
whose  services  would  "be  of  great  value  to  shippers  in  respect  to  his 
local  knowledge  and  influence,  as  also  as  regards  agency  of  the  inland 
transit  and  landing  and  shipping  of  goods  and  cotton."  And  further, 
that "  a  Mr.  Besbie,  of  the  Confederate  States  of  America,  holds  a  contract 
with  that  Government,  whereby  he  is  to  receive  100  per  cent,  on  invoice 
cost,  payable  in  cotton     *  #  *     for  any  goods  he  may  deliver 

into  the  Confederate  States,"  the  benefits  of  which  contract  he  would 
share  to  the  extent  of  50  per  cent,  with  any  houses  that  might  feel  in- 
clined to  ship.  The  i\Ir.  Itedgate  named  in  this  circular  was  a  passen- 
ger on  the  Peterhoft"  at  the  time  of  her  capture,  and  was  a  claimant  for 
I)art  of  the  cargo  and  for  damages  by  occasion  of  his  cai)ture  and  deten- 
tion before  the  commission.  The  Mr.  Besbie,  or  Begbie,  also  named  in 
the  circular,  joined  the  ship  at  Plymouth,  but  suddenly  left  it  at  Fal- 
luouth.  His  name  was  not  mentioned  by  the  master  in  his  deposition 
injircparatorlo,  who  alluded  to  him  merely  as  "another  passenger"  who 
"left  at  Falmouth."  Neither  of  the  firm  of  Bennett  &  Wake  was  exam- 
ined as  a  witness  by  the  claimants  before  the  commission,  though  notice 
was  given  of  the  examination  of  Bennett,  and  proof  was  made  that  he 
■was  within  reach  in  London  at  the  time  of  the  taking  of  the  testimony 
for  the  claimants  there,  and  the  counsel  appearing  for  the  United  States 
on  the  examination  demanded  his  production  as  a  witness  for  the  claim- 
ants pursuant  to  the  notice'.  Bennett  &  Wake  had  contracted  on  the 
27th  October,  18G2,  with  Pile,  Spence  &  Co.,  the  owners  of  the  Peter- 
hoft", for  the  laying  on  of  a  first-class  screw-steamer  to  proceed  to  the 
Rio  Grande  on  freight;  under  which  contract  the  Peterhoft'  was  dis- 
patched, as  named  in  the  circular  of  Bennett  &  Wake  of  24th  November, 
18G2,  above  referred  to. 

The  counsel  for  the  United  States  referred  to  and  adopted  the  opinion 
of  the  Suj)reme  Court,  (5  Wall.,  28,)  as  part  of  his  argument.  He  main- 
tained that  the  proofs  before  the  prize  court,  especially  strengthened  as 
they  were  by  the  proofs  taken  before  the  commission,  fully  sustained  the 


agent's  report. 


139 


condemnation  of  the  portion  of  the  carjyo  condcmnort  b}'  the  Supronje 
Court  .18  contraband,  and  in  fact  snflicientl}'  ssliosvod  the  pri'tended  desti- 
nation of  tlie  vessel  and  carjjo  to  jMatamoras  to  be  colorable.  That  if  all 
the  proofs  now  appearing  before  the  conunission  had  been  before  felie  prize 
court,  they  would  have  fully  justified  the  condenination  of  the  vessel 
and  the  entire  cargo.  That  in  any  event,  the  capture  of  the  vessel  and 
taking  her  into  port  was  justified  by  the  presence  of  the  (iontraband  on 
board,  which  was  in  fact  liable  to  condemnation  as  well  as  by  the  circunj- 
stances  of  the  case,  fully  establishing  probable  cause.  Tliat  the  evasions 
and  falsehood  of  the  master,  Jarmin,  on  his  examination  in  prapanitorio, 
and  the  spoliation  of  papers  shown,  of  themselves  debarred  the  claimants 
from  any  award  for  costs  or  ('amages.  That  as  to  the  taking  of  the 
vessel  by  the  United  States  at  on  ai)praisement  below  her  alleged  actual 
value,  and  as  to  the  alleged  errors  of  the  district  court  in  the  appor- 
tionment of  claimantis'  costs  upon  that  part  of  the  cargo  not  condemned 
in  captor's  costs,  those  were  matters  as  to  which  no  question  was  raised 
in  the  prize-courts,  and  for  which  those  courts  afforded  an  ample  remedy 
if  any  injustice  was  done  in  respect  of  them  to  the  claimants,  or  any  of 
them,  and  that  the  claimants  could  not  be  heard  here  for  the  lirst  time 
to  question  the  legality  of  the  proceedings  in  those  respects.  Tlnit  as 
to  the  apportionment  of  the  claimants'  costs,  this  appeared  to  have  been 
done  not  only  without  objection  of  the  claimants  in  the  prize  court,  but 
on  the  application  of  their  own  proctors  and  counsel.  And  as  to  the 
appraisement  and  taking  by  the  United  States,  everything  in  relation 
to  these  matters  had  been  by  stipulation  withdrawn  from  the  consider- 
ation of  the  Supreme  Court,  thus  clearly  imi)lying  the  consent  of  the 
owners  to  the  taking  at  the  valuation  named. 

Ou  the  part  of  the  claimants  it  was  contended  that  the  portions  of 
the  cargo  condemned  by  the  decree  of  the  Supreme  Court  as  contraband 
were  not  in  fact  contraband,  not  primarily  designed  for  military  use,  and 
not  shown  to  be  destined  for  the  use  of  the  enemies  of  the  United  States. 
That  the  voyage  of  the  vessel  was  lawful  from  one  neutral  port  to 
another,  and  that  her  capture  was  wholly  unjustified  by  any  proof  ot 
intent  to  violate  the  blockade,  or  of  unlawful  conduct  in  any  respect. 
That  the  valuation  at  which  the  vessel  was  taken  by  the  United  States 
Government  was  much  less  than  her  actual  value,  and  that  the  United 
States  were  justly  chargeable  with  at  least  the  sum  of  $30,000,  on  ac- 
count of  this  difference  in  value.  That  the  api>ortionmeut  of  claimants' 
costs  upon  those  portions  of  the  cargo  not  condemned  in  costs  was  un- 
lawful. That  the  question  of  costs  had  already  been  settled  by  the  de- 
cree of  the  Supreme  Court ;  and  that  the  district  court  in  charging  these 
clainmnts'  costs  upon  those  parts  of  the  cargo  exempted  from  costs  by 
the  decree  of  the  Supreme  Court,  disregarded  and  violated  that  decree. 

The  commission  unanimously  disallowed  all  the  claims. 


<♦.? 


\i- 


n 


liM 


The  steamship  Georgia ;  Edward  Bates,  M.  P.,  claimant,  No.  421. 
The  memorial  of  the  claimant  in  this  case  recited  that  the  Georgia 


140 


AMERICAN-BRITISH   CLAIMS   COMMISSION. 


p  1 1« 

>         <  i  ll 


I' 


■was  at»  iirmcd  vessel  of  the  Confederate  States.  That  she  caine  into 
the  port  of  Liverpool  on  or  about  tlie  2d  May,  I8(it ;  was  tliei(^  dis- 
urnied  and  advertised  for  sale;  and  that  the  claimant,  on  the  2d  June, 
18G4,  i)ur('hased  her  without  any  armament,  and  paid  for  her  in  good 
faith  the  sum  of  jC1."5,000  sterling,  her  full  value  at  the  time  of  the  pur- 
chase. That  he  immediately  changed  her*  iiiiernal  arrangements  to 
lit  her  for  use  as  a  merchant  steamer,  and  on  the  18th  July,  1804, 
chartered  her  to  the  Portuguese  government  for  a  voyage  to  Lisbon, 
Portugal,  having  si)ent  a  large  sum  of  money  in  the  alterations  and  tit- 
tings  to  adapt  her  for  carrying  passengers  and  cargo  pursuant  to  the 
terms  of  the  charter  party.  That  under  the  charter-party  the  vessel 
was  laden  by  the  Portuguese  government  with  coals  for  the  use  of  the 
vessel,  and  duly  cleared  at  Liverpool  on  her  voyage  to  Lisbon.  That 
while  pursuing  that  voyage,  "in  a  peaceable  manner  and  in  violation  of 
no  law  whatsoever,"  she  was  unlawfully  captured  on  the  high  seas  by 
the  United  States  ship  of  Avar  Niagara;  was  taken  into  the  port  of 
Boston,  there  libelled  in  the  United  States  district  court,  and  con- 
demned as  lawful  prize.  That  aii  appeal  was  taken  from  the  decree  of 
the  district  court  to  the  Supreme  Court  of  the  United  States,  which  on 
the  hearing  affirmed  the  decree  of  condemnation.  The  claimant  claimed 
an  award  for  £27,051,  besides  interest. 

To  thi^:  memorial  the  United  States  demurred  as  setting  forth  no  valid 
claim  against  the  United  States ;  in  that  the  memorial  showed  the  vessel 
to  have  been  an  armed  vessel  of  war  of  the  so-called  Confederate  States 
of  America,  which  were,  during  the  whole  period  of  the  transactions  set 
forth  in  the  memorial,  at  war  with  the  United  States.  That  she  entered 
the  neutral  port  of  Liverpool  in  her  character  as  such  armed  vessel  of 
war,  and  was  there  purchased  1  y  t  e  claimant,  her  armament  having 
been  first  removed,  with  full  know's^df  e  >i  her  former  character  as  such 
vessel  of  war,  belonging  to  a  power  at  war  with  the  United  States. 
That;sucii  purchase  carried  no  title  to  the  claimant  as  against  the  United 
States,  or  as  against  their  right  to  capture  the  vessel  as  a  vessel  of  war; 
and  thi.t  her  subsequent  capture  by  the  United  States,  as  set  forth  in  the 
memorial,  was  a  lawful  and  valid  capture,  and  the  vessel  was  properly 
and  lawfully  condemned  by  the  i)rize  courts. 

The  counsel  for  the  United  States  submitted  the  case  on  demurrer  on 
the  opinion  of  the  Supreme  Court,  delivered  on  the  affirmance  of  the  de- 
cree of  co:  demnatiou  (7  Wall.,  32)  and  without  further  argument. 

Her  Bill  nnic  Majesty's  counsel  hied  an  argument  in  behalf  of  theclaim- 
ant,  in  which  he  contended  that  the  doctrine  held  by  the  Supreme  Court, 
as  establishing  liability  of  the  vessel  to  capture  after  her  disarmament 
and  sale,  was  unsound  and  unsustained  by  the  authorities  cited  in  the 
opini«>'i.  He  cited  and  discussed  the  authorities  cited  by  the  Supreme 
Court  in  its  opinion,  to  wit :  The  Minerva,  6  Rob.,  31)7 ;  the  Baltic,  11 
Moor(  "s  P.  C.  R.,  145;  Story's  notes  on  the  Principles  and  Practice  of 
Prize  courts,  03 ;  Wildmau,  vol.  2,  p.  90 ;  and  contended  that  these  au- 


AGENTS    RKPORT. 


141 


thoritios  did  not  sustain  the  condnsionsof  tlie  Siipicnie  Court  on  which 
thi^  (leriee  ofaflinniince  was  based. 
Thechiiin  was  uiianiniously  disallowed. 

The  iStoaniship  Circassian;  llonry  Jann^s  I'.nrkor,  niortf.vMyve,  Xo.  431}, 
claimant  for  vessel ;  Ovcrond,  (Jurney  &  Co.,  niortjja^ees,  claimants 
for  freight;  The  lioyal  Exchange  Assurance  Corporatiou  and  others, 
No.  4U,  claimants  for  cargo. 

Tbe  Circassian  was  owned  by  Zachariah  C.  Tearson,  of  Mull,  who  had 
given  mortgages  to  the  amount  of  £L*r),On()  upon  tlu^  vessel,  which  mort- 
gages were  held  by  the  claimant  Barker,  No.  432.  He  had  also  assigned 
her  outward  freight  to  Messrs.  Overend,  Gurney  &  Co.,  No.  433,  by 
way  of  security  for  indebtedness.  The  vessel  sailed  from  JJordeanx, 
France,  on  the  7th  April,  18G2,  under  the  charter-party  hereinafter  re- 
cited. She  was  captured  by  a  United  States  cruiser  on  the  4th  INIay, 
1SG2,  on  the  high  seas  off  the  coast  of  Cuba,  taken  into  the  port  of  Key 
West,  and  there  libelled  and  condemned  as  prize.  An  appeal  was  taken 
to  the  Supreme  Cmnt,  which  court  aflirmed  the  <lecree  of  condemnation, 
!\Ir.  Justi(!e  Nelson  dissenting.  Tlie  case  is  reported,  with  the  dissent- 
ing opinion  of  Mr.  Justice  Nelson,  in  2  Wallace,  135  to  100. 

The  vessel  was  chartered  by  the  owners   11th  February,  1862,  to 
"  J.  Soubry,  agent  to  the  merchants  of  I'aris,"  being  then  on  her  way 
from  London  to  Cardiff,  to  proceed  thence  with  all  convenient  speed  to 
Havre  or  Bordeaux,  there  to  load  ;  "  and  being  so  loaded,  shall  there- 
with proceed  to  Havana,  Nassau,  or  Bermuda,  as  ordered  on  sailing, 
and  thence  to  i)roceed  to  a  port  of  America,  and  to  run  the  blockade,  if 
so  ordered  by  freighters,"  the  owners  agreeing  "  mt  to  cover  more  than 
half  her  value,  say  £20,000,  hy  insurance  against  war  risk."    The  rate 
of  freight  agreed  upon  was  $40  per  ton,  with  10  per  cent,  primage.    The 
vessel  was  loaded  at  Bordeaux,  shipping  receipts  being  given  by  the 
master  in  the  following  tenor,  (after  specifying  the  merchandise  shipped :) 
"  Which  said  merchandise  1  promise  to  convey  in  my  said  steamer  (the 
dangers  of  the  seas,  machiupvy,  and  all  other  unavoidable  accidents  ex- 
cepted) to  the  said  port  of  Havana,  there  to- receive  orders  for  the  final 
destination  of  my  said  steamer,  and  there  to  deliver  the  same  to  Messrs. 
Brulatonr  &  Co.,  or  their  order,  (or  to  order  generally,)  he  or  they  pay- 
ing me  freight  in  accordance  with  ^Vii  terms  of  my  charter-party,  which 
is  to  be  considered  the  supreme  law  as  regards  the  voyag«;  of  said 
steamer,  the  orders  to  be  received  for  her  and  her  final  destination."    A 
"  memorandum  of  affreightment,"   given  to  Mr.  Bouvet,  one  of  the 
shippers,  was  found  among  the  papers  of  the  vessel,  the  translation  of 
which  is  as  follows : 

Memorandum  of  affreightment. 

Taken  on  freight  of  Mr.  Bouvet,  jeune,  by  order  and  for  acconnt  of  Mr.  J.  Soubry 
ou  board  of  tbe  British  steamer  Circassian,  Captain  Hunter,  bound  to  Nassau,  Ber- 
muda, or  Havana,  tlio  quantity  of  fifty  or  sixty-five  tons,  heavy  or  light,  at  the  rate  of 
840  per  ton  for  the  heavy  and  the  light,  besides  10  per  cent,  average  and  x>rimage. 


■M' 


:K 


142 


AMERICAN-imiTISII    CLAIMS   COMMISSI^ 


The  mnrfilmiidiso  miiHt  bo  put  on  himni,  uicliiilin;;  all  delay,  tlio  day  afkor  notice, 
givoii  Ity  Mi(<  lirokor  liaviii^  iii  cliar^n  tliu  loailin;;,  iiiidur  tlio  pniiaUy  of  all  daina^us 
uikI  Mic.  Ions  III'  Mn'  piiico  on  lioiird,  witlioiit  rocoiirst;  to  judicial  incasiinw  to  pi'ovu  tiio 
Huit  tor  iioii-i-\i-ciitioii  of  tilt)  present  cii;r;i<rc!iiciit. 

Mr.  J.  Soiiliry  <Mi;^a;;c,s  to  execute  the  cliartcr-iiarty  of  alVrei<rlituicn't,  tliat  in  to  wvy, 
tliat  tlie  mcnliaiidise  .sliall  not  bo  diseiiibarktMl  but  at  the  port  of  New  Orleans,  and  to 
tliiN  eU'ect  lie  engages  tu  forcu  the  blockadu,  fur  uccoiiut  and  with  authority  of  J, 
Soubry. 

LAIUEUT,  Nenit. 

l\(mvF.\v\,  the  I'ilh  Frhntan/,  18G'i. 
Sunt  a  similar  inoinoranduni  to  the  parties  concerned. 

r.  DESUORDES. 

Otlier  papers  were  destroyed  by  the  master  of  the  Circassian  after  she 
had  been  stopped,  and  before  she  was  boarded  by  the  captors.  Tiie  ves- 
sel was  captured,  as  above  stated,  on  tiie  Ith  May,  1802.  Five  days  pre- 
vious to  the  capture — on  the  2!)th  April,  18(}2 — tiie  city  of  New  Orleans 
was  captured  l>y  the  Navy  and  Army  of  the  United  States,  under  Admi- 
ral Farrajjut  find  General  Butler,  and  thenceforward  continued  in  the 
j)ossession  of  tlie  United  States  to  the  termination  of  the  war.  A  proc- 
lamation was  issued  by  (Jreneral  Butler,  dated  1st  May,  printed  by  some 
Federal  soldiers  in  a  printingoftice  seized  for  that  purpose,  on  the  2d 
iVIay,  and  lirst  jjenerally  published  in  the  newspapers  of  the  city  on  the 
0th  May;  which  proclamation  declared,  amono;  other  thinofs,  that ''  the 
city  of  New  Orleans  and  its  environs,  witi  dl  its  interior  and  exterior 
defences,  havino-  been  surrendered  to  the  Mued  naval  and  land  forces 

of  the  United  States;  and  having  beeiie. ..  ..dced  by  the  rebel  forces,  in 
whose  occupation  they  lately  were;  and  being  now  in  occupation  of  the 
forct-s  of  the  United  States,  who  have  come  to  restore  oriler,  maintain 
public  trancpiility,  and  enforce  peace  and  quiet  under  the  laws  and  Con- 
stitution of  the  United  States,  the  major-general  hereby  makes  known 
and  proclaims  the  objects  and  purpose  of  the  Government  of  the  United 
States  in  thus  taking  possession  of  the  city  of  New  Orleans  and  the 
State  of  Louisiana.  «  *  #  ♦  ^^  rights  of  property  of 
whatever  kind  will  be  held  inviolate,  subject  only  to  the  laws  of  the 
United  States,"  &c.  This  proclamation  also  declared  the  city  under 
martial  law. 

In  the  case  of  the  Venice,  (2  Wall.,  27G,)  the  Supreme  Court  of  t»he 
United  States  held  that  the  military  occupation  of  the  city  was  to  be 
considered  as  substantially  complete  from  the  date  of  this  publication 
in  the  newspapers,  (0th  May.) 

On  the  12th  May,  President  Lincoln  issued  a  proclamation  reciting 
the  blockade,  up  to  that  time,  of  the  port  of  New  Orleans,  with  two  other 
|)orts,  and  that  the  blockade  of  those  ports  "may  now  be  safely 
relaxed  with  advantage  to  the  interests  of  commerce,"  and  declaring 
that  the  blockade  of  those  ports  "shall  so  far  cease  and  determine  from 
and  after  the  1st  day  of  June  aext;  that  commercial  intercourse  with 
those  ports,  except  as  to  persons,  things,  and  information  contraband 


she 


AGENTS    RErOUT. 


143 


il'OVO  tin) 

Ih  to  way, 
IS,  iiikI  to 
ity  of  J. 

,  Nevtii. 
If,  1662. 

HIDES. 

ifter  slio 
Che  ves- 
iiys  pro- 
Orleans 
r  Adini- 
tl  ill  the 
A  proo- 
by  some 
n  the  2(1 
y  on  the 
lilt '"  the 
exterior 
111  forces 
brces, in 
Ml  of  the 
uaintain 
mil  Con- 
s  known 
e  United 
anil  the 
iperty  of 
s  of  the 
ty  under 

't  of  Ijhe 
ras  to  be 
blication 

reciting 
wo  other 
)e  safely 
leclaring 

ine  from 
irse  with 
tttraband 


of  war,  may  from  that  time  bo  carried  on,  subject  to  the  laws  of  the 
United  States,"  itcc.     (12  Stat,  ai  L,,  12<;.5,  12(;i.) 

Itarker,  iis  mortfragoe  of  the  vessel,  (No.  ■t.'{2,)  claimed  ilL'.'V-'OO,  besides 
interest.  Ovi'iend,  (Inrney  &  Co.,  assi^jnees  of  the  ontward  froi<,'ht, 
(No.  43.1.)  cliiimi'd  ,£10,00!),  besides  interest.  The  insurance  companies 
smd  underwiiters  (No.  414)  claimed  JCr)2,().'5(»,  besides  interest,  the  value  of 
the  cargo  insured  by  them,  abandoned  by  the  owners,  and  paid  for  as 
for  a  totid  loss.  Of  the  cargo  thus  insured,  jKutions  to  the  value  of 
£ll,ri(K"i  were  alleged  to  have  been  owned  by  IJritish  subjects  and 
insured  by  tiu' clainmnts,  IJritish  underwriters.  The  remainder  of  the 
cargo,  valneil  at  £H,1.{.'{,  was  admitted  to  have  been  owned  by  French 
merchants  residing  at  JJordeanx,  though  insured  by  Ibitish  under- 
writers. On  tlie  sale  under  the  decree  of  condemnation  the  gross  pro- 
ceeds of  the  vessel  were  8107,000,  United  States  currency;  the  gross 
proceeds  of  tlic!  caigo  were  8243,470.40  in  the  same  currency. 

On  the  piirt  of  the  claimants  it  was  maintained — 

1.  That  the  immediate  destination  of  the  Circassian  at  the  time  of 
her  cajiture  was  Havana,  a  neutral  port;  that  this  destination  was  a 
real  one;  and  that  the  question  whether  her  voyage  was  to  extend 
beyond  Havana  was  an  open  question,  not  to  be  decided  until  her  ar- 
rival there;  so  that  her  capture  before  reaching  Havana  could  not  be 
considered  a  captuv  in  the  coarse  of  a  voyage  to  a  blockaded  port; 
that  until  her  arrival  at  Havana  and  departure  thence  for  a  blockaded 
port,  a  litem  pen  iff  nf  hi;  exinta},  even  if  the  original  design  had  been  that 
she  shoulil  proceiul  from  Havana  to  New  Orleans. 

2.  That  notwithstanding  the  doctrines  held  by  the  prize  courts  of 
England  and  the  United  States,  the  nu>re  api)roved  modern  authorities 
overrule  the  doctrine  of  the  droit  de  prevention  and  droit  dc  xuite  ; 
"that  is  to  say,  the  right  of  considering  as  guilty  of  a  violation  of  the 
blockade  every  neutral  vessel  which  has  sailed  for  a  place  dechired 
blockaded  after  knowledge  of  the  notitication  ;  and  of  regarding  in  fla- 
granti delict),  during  the  whole  return  voyage  to  its  port  of  destination, 
every  vessel  wliich  has  left  a  blockaded  port ;"  aiul  hold  as  the  better 
doctrine  that  "  the  guilty  vessel  can  only  be  seized,  first,  at  the  moment 
of  violating  the  blockade  by  crossing  the  part  of  the  sea  which  has  been 
conquered  by  tiie  blockading  squadron  ;  second,  in  the  road  or  blockaded 
port,  if  the  investing  force  can  enter  there,  either  by  taking  the  port  or 
by  penetrating  there  by  force  or  stratagem  and  carrying  ott'  the  vessel ; 
and  third,  at  the  moment  of  attempting  to  go  out,  that  is  to  say,  when 
crossing  the  territory  of  a  nation  whose  law  it  has  violated,  even  al- 
though the  departure  in  itself  should  be  innocent."  That  under  this 
doctrine  the  capture  of  the  Circassian  was  unlawful  on  the  high  seas, 
even  if  her  direct  destination  was  a  blockaded  port. 

3.  That  by  the  terms  of  the  President's  proclamation  of  blockade,  as 
well  as  by  the  rules  of  internatioual  law,  the  Circassian  conld  not  be  law- 


144 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


fully  captured  until  she  had  received  due  notice  of  the  blockade  by  warn- 
ing entered  upon  her  register. 

4.  That  by  tlie  capture  of  Xew  Orleans  and  the  reduction  of  that  city 
to  the  possession  and  control  of  the  United  States  before  the  capture  of 
the  Circassian,  the  blockade  of  that  port  had  ceased  ;  that  the  fight  of 
blockade  being  a  purely'  belligerent  right,  and  in  respect  of  an  enemy's 
port,  of  necessity  terminates  eo  biHtanti  on  the  caphire  of  the  blockaded 
port  itself  by  the  blockading  belligerent;  that  in  the  case  of  New  Or- 
leans, not  only  was  the  fact  of  its  capture  in  the  month  of  April,  and 
its  permanent  and. complete  occupancy  and  control  by  the  United  States 
from  that  time  forward  fully  attested  as  a  matter  of  history,  but  such 
possession  and  occupation  wasoflicially  asserted  and  proclaimed  by  the 
proclamation  of  General  J3utler  on  the  1st  May,  IcSU'i ;  that  this  proc- 
lamation speaks  from  its  date,  and  not  from  the  time  of  its  alleged  gen- 
eral publication  in  the  newspapers,  erroneously  assumed  by  the  Supreme 
Court  to  hav(^  been  on  the  Otli  May,  it  in  fact  having  been  published  in 
the  New  Orloans  Daily  Picayune  on  the  4th  May,  1802,  as  appeared  by 
a  copy  of  that  pai)er  produced  before  the  commission  ;  that  the  right  to 
close  or  coiitrol  the  captured  port  by  municipal  regulation  under  the 
statute  of  13th  July,  18G1,  {VI  Stat,  at  L.,  2515,  2."»7,)  was  not  nly  en- 
tirely distinct  fro?n,  but  inconsistent  with  ^lie  belligerent  riglit  of  block- 
ade, and  that  the  former  right  accrued  when  the  latter  terminated,  upon 
the  capture  and  complete  possession  of  the  city;  and  that,  under  the 
municipal  regulations  instituted,  or  to  be  instituted,  in  such  caiie,  plaiidy 
no  capture  could  be  made  on  the  high  seas,  those  jnunicipal  regnl  itions 
not  operating  extra  territorially ;  that  the  blockade  having  thus  termi- 
nated by  the  cai)ture  of  New  Orleans,  the  right  of  capture  of  the  Cir- 
cassian, if  it  had  existed  until  then,  necessarily  terminated  with  the 
termination  of  the  blockade,  the  vessel  no  longer  being  in  (Idkto.  That 
in  regard  to  the  claims  of  the  insurance  companies  and  un  lerwriters  in 
No.  444,  those  claims  were  the  legitimate  subject  of  rechimalion  before 
this  commission,  as  well  in  respect  of  those  portions  of  the  insured  cargo 
originally  owned  by  French  merchants  as  of  those  owned  l)y  Britiali 
subjects;  that  upon  abandonment  and  payment  tiie  title  of  the  under- 
writers becante  absolute  to  all  interest  of  the  insured  in  the  property, 
and  to  all  right  of  reclamation  in  respect  of  the  same,  and  that  such 
title  related  back  to  the  date  of  the  insurance. 

The  counsel  for  the  claimants  presented  manuscript  opaiions  of  doc- 
tors rhillinu)reand  Lushington,  and  other  counsel,  holding  the  capture 
of  the  Circassian  illegal  on  account  of  the  lack  of  previous  warning,  as 
well  as  upon  the  ground  of  the  previous  capture  and  occui>ation  of  New 
Orleans.  They  also  presented  the  dissenting  opinion  of  Mr.  Justice  Nel- 
son, in  the  case  of  the  Circassian,  (2  Wall.,  155,)  as  a  correct  exposition 
of  the  law  aj>plicable  to  the  case,  and  cited  the  following  au'''orities  : 
The  Prize  Cases  (2  IJlack,  035) ;  the  Amy  Warwick  (2  Sprague,  123) 
the  Venice  (2  Wall,,  259) ;  Thirty  Hogsheads  of  Sugar  vs,  Pyle  (5)  Cranch, 


AGENT'S    KEPORT. 


145 


101);  The  United  States  vs.  Rice  (1  Wheat.,  240) ;  Fleming  rs.  Puffe  (J) 
How.,  (i(Ki);  Cioss  m.  llanison  (10  How.,  104);  The  Abby  (5  Uob.,  25;}) ; 
The  Treiitle  Soztie  (0  liob.,3«()  ,.j;  The  Fiaiicisea  (10  MooreV  V.  C.  K., 
37);  Pafli,  PrincipcH  dc  droit  pub.  mer.,  180;  Dana's  Wheat.,  087  n; 
The  Lizette  (0  Kob,,  395);  The  Empres.s  (lilatch.  P.  C,  059);  Dean's 
Law  of  IJloekade  2,32;  liawrence's  Wlieaton,  pp.  30,100,459,510,777 
to  779,  810.  845,  848  to  850,  970  ;  Wheaton's  Life  of  Pinckney,  U»9  to  228 ; 
The  Dickinson  (III.  and  M.,  31) ;  La  Jcune  Engcuie,  [2  Mason,  409, 
403);  The  Louis  (2  Dods.,  110);  The  Antelope  (10  Wheat,  122);  The 
Mary  Anna  Flora  (11  Wheat.,  442) ;  Lawrence's  Visitation  and  Seardi, 
73,79;  Hudson  r.s'.Guestier  (OCranch,  281);  llace  rs.  lliniely  (4  Cranch, 
272) ;  2  Phill.,  237 :  American  State  Papers,  vol.  4,  j)p.  150,  158 ;  The 
Arthur  (1  Dods.,  425) ;  Ilautefeuille,  vol, 2,  pp.  239, 2i4  ;  Vos  vs.  United 
States  Insurance  Com[)any  (1  Caines's  Cases  in  i^'^rror,  XXIV) ;  Van<leii- 
heuvel  vu.  Same  (2  id.,  217) ;  Liotard  vs.  Graves  (3  Caines's  Kep's,  239) ; 
FItzsimmons  vs.  The  Newport  Insurance  Company  (4  Cranch,  185) ; 
Uill  r.s'.  United  States  (C.  Cls.  K.,);  The  Maria  (5  Kcb.,  305);  The  Mary 
land  Insurance  Company  vs.  Wood  (0  Craneh,  29) ;  The  Admiral,  (3 
Wall.,  014) ;  Attoiiiey-General's  Opinions,  vol.  1,  p.  ."iOo  ;  The  Frederick 
Molke  (1  Kob.,  87);  The  liolla  (0  id.,  372);  The  Success  (1  Dods., 
134) ;  La  Peyre  vs.  United  States,  in  U.  S.  Sup.  Ct.,  MS.  opin.,  not  yet 
reported;  Uynkershoek  de  rebus  bcUivis,  li.  X\^I;  The  Grey-Jacket  (5 
Wall.,  342) ;  S.  C,  on  nu)tion  (id.,  370) ;  Tudor's  Leadinj;  Cases  on 
Mercantile  and  Maritime  Law,  887;  Texas  vs.  White  (7  Wall.,  789); 
Coinegys  vs.  Vasse  (1  Peters,  210);  Shei»herd  rs.  Taylor  (5  n/.,  712); 
Trevol  vs.  P.ache  (14  id.,  95) ;  Gill  vs.  Oliver's  Exec-tors  (11  How.,  529) ; 
Jaudon  vs.  Corcoran  (17  id.,  012) ;  Gracie  vs.  New  York  Insurance 
Company  (8  Johnson's  li.,  237);  Watson  vs.  Insurance  Company  ot 
North  AnuM'ica  (1  Binney,  47);  Carlisle  vs.  United  States,  in  Sup.  Ct., 
not  yet  reported. 

On  the  part  of  the  United  States  it  was  contended  that  the  voyage  of 
the  Circassian  was  plainly  undertaken  vith  the  purpose  and  intent  of 
violating  the  blockade;  tiuit  she  was  under  express  contract  with  her 
freighters  to  violate  it,  and  was  in  the  a(!tual  prosecution  of  the  voyage 
with  that  purpose  and  destination  when  cai)tured,  and  was  thereby 
liable  to  capture  and  conde'unation.  (The  Columbia,  1  Kob.,  150.)  That 
having  full  knowledge  of  viie  existence  of  tiu^  blockade,  and  having  ex- 
juessly  undertaken  its  v  olation,  no  further  notice  or  warning  was  neces- 
sary to  justify  her  capture. 

That  New  Orleans,  which  had  been  fully  and  completely  an  enemy's 
city,  and  one  of  the  enemy's  chief  uuirts  from  the  outbreak  of  the  rebel- 
lion in  1801  to  its  occupation  by  the  Army  and  Navy  of  the  United  States 
on  the  29th  April,  1802 — five  days  before  the  capture  of  the  Circassian — 
had  not  been  reduc^ed  to  the  fixed,  stable  and  assured  possession  of  the 
United  State*  ut  the  time  of  that  capture.  That  the  mere  possess io pedis 
of  the  city  by  the  United  States  did  not  work  the  instant  termiuation 
10  u 


146 


AMEKICAN-BRITISII    CLAIMS    COMMISSION. 


of  the  blockaile,  bat  that  rcasoiiahle  time  after  tlie  actual  possession 
must  be  allowed  to  determine  whether  the  occupation  was  such  a  stable 
and  permanent  one  as  to  justify  the  opening  of  the  port  as  a  port  of  the 
United  States.  Inat  until  such  occu[)ation  was  so  established,  New 
Orleans  still  remained  an  eueuij's  city  as  regarded  the  rights  of  neutrals 
to  trade  there. 

That  tiuie  must  be  given  after  the  actual  occupation,  reasonably  suf- 
ficient to  put  in  force  the  municipal  regulations  of  the  United  States, 
with  the  apparatus  of  custom-hoases  and  courts,  through  which  su<!h 
municipal  regulations  were  to  be  enforced;  and  that  until  snllicient 
time  had  elapsed  for  that  purpose,  the  belligerent  right  of  blockade  con- 
tinued ;  that  the  blockade  of  New  Orleans  was  not  a  blockade  "by  the 
siniple  fact  only,"  but  "by  a  notification  accompanied  with  thc!  fact;"' 
and  such  blockade  continued  within  reasonable  liaiitation  till  ended  by 
like  public  notificatiju.     (The  Neptune,  i  Kob.,  170.) 

That  the  time  fixed  by  the  Sui)reme  Court  in  the  case  of  the  Venice 
(2  Wall.,  'JuD)  as  the  date  of  the  assured  possession  by  the  United 
States,  as  deteraiining  the  national  character  of  the  inhabitants  of  that 
city,  (0th  May,  1862,)  was  certainly  the  earliest  date  which  could  prop 
erly  be  assigned  as  that  of  assured  possession  by  the  United  States  for 
any  purpose. 

That,  in  fact,  the  time  necessary  to  establish  the  permanence  and 
stability  of  possession,  by  the  capturing  belligerent,  shouhl  fairly  and 
properly  be  left,  within  reasonable  limits,  to  his  own  determination,  and 
that  the  date  of  1st  June,  1802,  fixed  by  the  President  of  the  United 
States,  by  his  proclamation  of  12th  May,  (12  Stat,  at  L.,  1203,  1204,)  for 
the  termination  of  the  blockade,  was  within  reasonable  limits  under  the 
rules  of  international  law  ;  and  that  that  date  (1st  June)  should  be  cou- 
sidered  the  lawful  and  proper  termination  of  the  blockade. 

That,  at  the  date  of  the  capture  of  the  Circassian,  the  city  of  New 
Orleans,  though  in  the  actual  occupancy  of  the  United  States  forces, 
had  neither  capitulated  nor  surrendered,  but  was  still  an  enemy's  city, 
deserted  for  the  time  by  its  garrison,  but  held  only  by  an  insignificant 
force,  and  what  its  chief  civic  oflicer,  still  avowing  the  adherence  of  the 
city  to  the  confederate  cause,  called  "  the  power  of  brutal  force,  not  by 
choice  or  consent  of  its  inhabitants."  (See  letter  of  the  mayor  of  New 
Orleans  to  Flag-officer  Farragut,  4  lleb.  IJec,  doc.  523,  524 ;  also,  2d 
Wallace,  141  n;  and  Parton's  Butler  in  New  Orleans,  282,  342.)  That 
the  military  occupation  of  the  city  of  New  Orleans  by  the  United  States 
coi'ld  not  be  extended  by  construction  beyoiul  the  lines  of  actual  mili- 
tary occupation,  and  that  the  <!ity  of  New  Orleans  was  not  conterminous 
with  the  port  of  New  Orleans  as  established  l»y  the  statutes  of  the 
United  States,  (9  Stat,  at  L.  458;)  but  that  the  port  which  had  beeri 
blockaded  enibraced  territory  outside  the  city,  and  not  within  the  lines 
of  actual  military  occupation.    That  such  occupation  of  a  portion  only 


agent's  report. 


147 


SSCSSlOIl 

a  stable 
t  of  the 
Ml,  New 
ueutiaLs 

i\)ly  suf- 
i  States, 
ich  sueh 
iiiilicieiit 
atle  coii- 
"  by  the 
10  fact;"' 
iiuled  by 

e  Ye  nice 
5  United 
s  of  that 
\U\  prop 
itates  for 

pnce  and 
aiiiy  and 
tion,  and 
United 
12G4,)  for 
nder  the 
d  be  con- 

y  of  New 
es  forces, 
ny's  city, 
gnificant 
ice  of  the 
e,  not  by 
r  of  New 
;  also,  2d 
)    That 
ed  States 
tual  mili- 
erininous 
Bs  of  the 
had  been 
the  lines 
tiou  only 


of  the  part  could  not  be  deemed,  of  itself,  a  termination  of  the  blockade 
of  the  port. 

Tiiat  the  collection  district  of  which  New  Orleans  was  thes(»leportof 
entry,  inclinled  the  entire  extent  of  the  navijjation  of  the  Mississippi 
Kiver  and  its  tributaries,  coverinj?  thousaiids  of  miles  of  na\  ij^ation, 
and  larjie  cities  situate<l  upon  that  river  and  its  tributaries,  (J  Stat,  at 
L.,2r)2;  4  ifl.,  480.)  That  a  lar}i;e  extent  of  the  country  included  within 
this  district,  and  many  important  ports  and  towns  within  it,  were  still 
in  the  undisturbed  control  and  oc(!upancy  of  the  enemy.  That  the 
blockade  of  New  Orleans  was  in  effi'ct  tiie  blockade  of  the  Mississippi 
Kiver,  and  that  until  the  United  States  were  in  complete  and  assured 
possession  of  all  the  niDUths  oF  the  river  as  well  as  the  entire  port  of 
New  Orleans,  the  imperfect  and  i)erhaps  transient  0(!(Mipation  of  the 
civy  of  New  Orleans  was  not  to  be  taken  as  lerminatinj;-  the  blocl-iule. 

That  so  far  as  the  Circassian  herself  and  heroHicers  were  concerned, 
sailinjj  with  the  direct  purpose  and  destination  of  violating  the  bhxtkade, 
and  withor.t  knowledge  or  notice  either  to  them  or  their  captors  of  any 
chauftc  of  occu]iation  of  New  Orleans,  such  an  accidental,  technical,  and 
artificial  objection  to  the  rightfulness  of  her  (japture  sluuld  not  be  al- 
lowed to  change  the  character  of  a  capture  otherwise  lawful,  and  convert 
it  into  an  unlawful  capture,  without  strict  and  conclusive  i)roof  of  the 
facts  relied  on  so  to  change  the  character  of  the  capture. 

That,  as  to  the  claim  of  the  insurance  companies,  (No.  444,)  they  had 
no  standing  before  the  commission  in  respect  of  the  larger  part  of  the 
cargo  insured  by  them,  the  same  having  been  the  property  of  French 
merchants,  not  subjectsof  H(  r  Ibitannic ^Majesty.  That,  by  the  terms  of 
the  treaty,  jurisdiction  is  given  to  the  coinmission  only  of  daiais  "'grow- 
ing out  of  injuries  to  t'     in'isons  and  property  of  IJritish  sul>Je('ts." 

That  the  gist  of  the  iii|ii:r  here  complained  of  was  tin-  wrongful  (cap- 
ture of  the  Circassian  and  her  car;.;ii,  the  subsequent  condemnation  and 
sale  being  merely  incidents  of  tin  t-apture  in  thf  course  of  the  adjudica- 
tion by  the  tribunals  of  the  LTnited  States,  as  to  its  lawfulness,  merely 
for  the  puri»ose  of  determining  whether  the  cai)ture  ><'ioiil(l  be  ultimsiti'ly 
ado[>ted  as  the  act  of  the  Unite<l  States.  Th::  ,  when  ciiptured,  this  part 
of  the  cargo  was  not  the  property  of  the  subjects  of  I  [er  Uritannic  Majesty. 
That  the  abandonment  by  the  insured  to  the  insurers  after  <'apture,  the 
acceptance  of  such  abandonment  by  the  insurers,  and  payment  as  for  a 
total  loss,  simply  operated  as  a  transfer  to  tlu'  '  surers  of  the  rights  of 
the  assured  in  respect  of  the  (capture;  an  1  iiiat  the  insurers  stood 
merely  as  subrogated  to  the  rights  of  the  owners  at  the  time  ol  tln^  cap- 
ture, and  as  their  equitable  assignees.  Tliat  such  transfer  by  operation 
of  law  gave  to  the  insurers  as  equitable  assignees  no  better  standing 
before  the  commission  than  they  would  have  incase  of  a  claim  tor  any 
other  injuries  to  the  persons  or  property  of  individuals  not  subjects  of 
Her  Hritannic  Majesty,  but  who  had  assigne<I  their  claim  against  the 
United  States  for  such  injuries  to  a  British  subject.    That  so  far,  there- 


I 
1  I 


*  i 


ill    "ft 


ii'ifj 


fl!| 

! 

,,,. 

1 

M':i 


i 

i 

I 

1 

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1 

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IBji 

i 

■L 

!j 

148 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


T 


fore,  as  the  property  of  these  "French  merchants"  on  board  the  Circas- 
sian was  concerned,  no  riglit  ot  recUiination  against  the  United  States 
under  the  treaty  existed  in  the  claimants. 

The  commission  (Mi.  Commissioner  Fra/er  dissentinjj)  made  awards 
iu  favor  of  all  the  claimants.  To  the  claimants  in  No.  432,  the  sum  of 
$71,428,  in  No.  433,  the  snm  of  $20,450,  and  in  444  the  sum  of  $133,290. 
I  am  advised  that  these  resjvective  sums  in  Nos.  432  and  444  were  taken 
by  the  commission  as  the  actual  proceeds  of  the  sales  of  the  vessel  and 
Cfirgo,  respectively,  reduced  from  United  States  currency  at  its  value  at 
the  date  of  sale  to  a  gold  basis,  and  without  the  allowance  of  any  in- 
terest. The  award  lU  No.  444  covered  as  well  the  proceeds  of  the 
cargo  belonging  to  the  French  merchants  as  the  portions  owned  by 
British  subjects. 

Mr.  Commissioner  Frazer  read  a  dissenting  opinion,  which  will  be 
found  iu  the  Appendix  N. 

The  schooner  Jane  Campbell :  George  Canij'bell,  claimant.  No.  453. 

This  vessel  was  captured  by  a  vessel  of  tiie  ^^nited  States  blockading 
squadron  in  December,  1801,  off  the  i)ort  of  Beaufort,  N.  C.  She  was 
taken  into  the  port  of  New  York  and  there  libelled  in  the  United  States 
district  court.  That  court  made  a  decree  awarding  restitution  of  the 
vessel  and  certifying  probaLie  cause  of  capture,  but  finding  upon  the 
evidence  that  the  captors  had  been  guilty  of  unjustifiable  coiduct 
towai  d  the  crew  and  cargo  and  stores  of  the  vessel  in  the  matters  here- 
inafter named,  ordered  a  reference  fo  prize  comniiscioiu'rs  to  as(!ertain 
and  report  to  the  court  the  dauuiges  sustained  in  conse<pience  of  such 
alleged  misconduct.  (The  case  is  reported  in  Blatchford's  Prize  Cases, 
107,  130.)  Under  this  order  no  [)r()ofs  were  offered  by  the  claimants  in 
the  district  court,  nor  any  further  proceedings  hud  as  to  such  alleged 
damages;  and  no  appeal  was  taken  from  the  decree  of  the  district 
court. 

The  proofs  in  the  prize  court  were  not  put  in  evidence  before  the  com- 
mission, but  the  claimant  rested  the  case  here  on  his  own  deposition 
taken  before  the  commission. 

Froui  the  testimony  of  the  claimant  himself,  it  appeared  that  he  was, 
down  to  August,  lSOl,a  resident  of  Petersburgh,  Va. ;  that  the  vessel 
was  of  American  build  and  register,  and  was  bought  by  him  in  July, 
18GI,  in  Washington,  N.O.,  a  blockaded  port  of  the  enemy.  He  boughther 
for  the  alleged  purpose  of  taking  his  family  from  North  Carolina  to  Liver- 
pool ;  and  in  August,  1801,  took  her  out  through  the  blockade,  and  sub- 
sequently caused  her  to  be  registered  as  a  British  vessel.  The  district  court 
found.,  upon  the  proofs  before  it,  that  the  vessel  when  captured  was 
apparently  approaching  thf  blockaded  port  of  Beaufort,  N.  C,  with 
intention  to  enter  it.  The  (ilaimant  alleged  in  his  memorial,  and  stated 
iu  his  deposition,  that  he  was  on  a  voyage  from  Liverpool  to  Havana; 
that  he  was  compelled  hy  stress  of  weather  and  injuries  received  to  seek 


agent's  report. 


149 


assistance  off  the  coast  of  North  Carolina,  and  approached  the  blockading 
fleet  for  that  purpose,  making  known  his  condition,  but  his  vessel  was 
thereupon  seized  and  sent  in  for  libel.  The  memorial  also  alleged,  and 
the  prize  court  found  upon  the  evidence  before  it,  that  on  the  capture  of 
the  vessel  the  claimant,  who  was  on  board  of  her,  was,  with  some  of  the 
ship's  company,  taken  from  the  schooner,  placed  on  board  a  United 
States  vessel,  and  carried  to  Fortress  Monroe  and  there  landed,  while 
the  vessel,  with  her  captain  and  the  remainder  of  her  cargo,  was  taken 
to  New  York,  and  that  the  prize  crew,  while  on  board,  broke  oi)en  the 
hatches  and  the  storeroom  and  appropriated  portions  of  the  cargo  and 
stores.  The  memorial  claimed  damages  for  the  detention  of  the  vessel 
and  the  injuries  to  the  cargt    and  stores,  £3,260,  besides  interest. 

The  claimant  assigned  in  his  memorial,  and  in  his  deposition,  as  the 
reason  of  his  omission  to  make  proof  of  his  damages  in  the  dist;  ct 
court,  and  to  api)eal  to  the  Supreme  Court,  that  he  was  informed  b;^  the 
pssistant  district  attorney  of  the  United  States  that  if  he  persisted  in 
the  prosecution  of  his  claim  for  damages,  the  United  States  would  ap- 
peal from  the  judgment  of  restitution  rendered  by  the  district  court; 
and  that  knowing  that  this  course  would  probably  keep  his  property 
i.r'cked  up  for  years,  and  not  being  in  a  position  to  bear  such  a  loss,  he 
took  away  the  vessel  and  cargo  without  any  further  prosecution  of  his 
claim  for  damages. 

On  the  part  of  the  United  States  it  was  contended  that  the  purchase 
of  the  vessel  by  the  claimant  within  a  blockaded  port  of  the  enemy, 
she  being  at  the  time  an  enemy's  vessel,  and  the  claimant  at  the  time 
of  the  purchase  an  enemy  by  domicile,  and  the  subsequent  taking  her 
out  through  the  blockade,  followed  by  change  of  domicile  of  the  ownci 
and  of  registry  of  the  vessel,  did  not  change  the  character  of  the 
vessel  from  an  enemy  to  a  neutral.  That  the  purchase  of  a  private 
merchant-ship  of  the  enemy  by  a  neutral  in  time  of  war,  when  made  in 
a  neutral  port,  if  uotper  se  illegal,  is  always  liable  to  great  suspicion, 
and  demands  proof  of  good  faith  and  of  payment  of  full  consideration. 
(3  Phill.,  GOV.,  That  such  sale  when  made  in  a  blockaded  port  of  the 
enemy  was  ab  lolutely  void ;  and  that  if  the  facts  of  this  pretended  sale 
had  been  made  to  ai)pear  in  the  prize  court,  the  vessel  must  there  have 
been  condemned  as  enemy's  property.  That  the  claimant  had  full 
opportunity  to  make  proof  and  receive  an  award  for  his  alleged  dam- 
ages in  the  prize  court;  and  that  having  voluntarily  abandoned  the 
pursuit  of  his  remedy  there,  he  could  not  now  be  heard  to  make  recla- 
mation before  the  commission.  That  the  reason  alleged  by  him  for  his 
omission  to  prosecute  his  claim  for  damages  in  the  prize  court,  made  his 
case  no  better.  That  the  law-officer  of  the  United  States  had  an  undis- 
puted right  to  say  to  the  claimant,  as  he  did  in  effect :  "If  you  choose  to 
claim  damages  of  tlie  United  States  I  shall  take  an  appeal  and  test  the 
questioi.  of  the  right  of  condemnation  in  the  appellate  court;  but  if  you 
are  willing  to  take  the  vessel  without  claim  of  damages  1  will  waive  my 


I'll'' 


150 


AMEUICAN-BRITISH    CLAIMS   COMMISSION. 


right  of  appeal,  and  allow  you  to  depart  with  tlie  vessel  and  cargo." 
That  the  elaiiiiant's  <al)andoinnent  of  the  right  thus  given  him  to  n)aku 
proof  in  regard  to  the  niiscondiiet  of  the  captors  rather  thiiu  have  the 
question  of  con<lenination  reviewed  on  ai)peal,  was  clearly  "an  acknowl- 
edgment of  the  Justice  of  the  sentence."  That  by  the  chiimant's  on>is- 
sion  to  produce  before  this  commission  the  testimony  taken  in  the  j)rize 
court,  he  was  debarred  from  alleging  that  the  evidence  in  that  court  was 
insutlicient  to  sustain  the  decree  certifying  probable  cause  of  capture. 
The  commission  unanimously  disallowed  the  claim. 


;i:! 


i  ! 


6.  Claims  for  damages  by  reason  of  the  alleged  ttnlairfitl  teaming  off  of 
vessels  from  coasts  of  the  ISlates  in  rebellion  by  United  States  vessels  of 
■war. 

These  claims  were  three  in  number — that  of  Benjami'i  Whitworth  and 
others,  owners  of  the  ship  Uoyne,  No.  21G;  that  of  Andrew  Ewing 
Byrne  and  others,  owners  of  the  ship  Monmouth,  No.  315;  and  that  of 
Matthew  Isaac  Wilson,  owner  of  the  bark  Hilja,  No.  407. 

The  Boyne  (No.  210)  sailed  from  Fleetwood,  Lancashire,  England, 
on  the  25th  Jlarch,  1801,  with  a  cargo  of  coals  for  Savannah,  Georgia. 
On  the  11th  May,  when  near  the  entrance  of  the  harbor  of  Charleston, 
S.  C,  she  was  boarded  by  an  officer  of  the  United  States  steam-frigate 
Niagara,  who  made  this  entry  upon  her  register : 

Warned  off  the  wliole,  coast  of  the  South  by  th«  United  States  steamer  Niagara,  May 
11,  18(il.    Edward  E.  Potter,  lieutenant,  United  States  Navy. 

In  consequence  of  this  warning  she  abandoned  her  voyage  to  Savan- 
nah, and  went  to  New  York,  where  it  was  alleged  that  she  disposed  of 
the  cargo  of  coal  at  a  rate  much  less  than  it  would  have  commanded  in 
Savannah,  and  took  a  homeward  freight  from  New  York  of  much  less 
value  than  she  would  have  secured  from  Savannah.  In  fact,  at  the  date 
of  the  warning  no  .sufficient  blockade  had  been  instituted  at  Savannah 
or  at  any  other  port  south  of  Charleston  ;  the  actual  blockade  of  Sa- 
vannah not  having  commenced  until  the  28th  May.  The  memorial 
claimed  damages  by  reason  of  loss  on  outward  cargo,  and  on  return- 
freight  below  that  which  she  would  have  earned  from  Savannah,  and 
by  detention  of  the  vessel,  £0,400  13s.  Od.,  besides  interest. 

The  Monmouth  (No.  315)  sailed  from  Liverpool  in  March,  18G1,  with 
a  cargo  of  salt,  under  written  instructions  to  proceed  to  Charleston  and 
deliver  vessel  and  cargo  to  consignees  there ;  and  if  that  port  should  be 
found  blockaded,  then  to  go  to  Savannah ;  and  if  he  failed  in  getting  a 
cotton  freight  at  either  Charleston  or  Savannah,  then  to  go  to  St. 
Stephen,  New  Brunswick,  and  load  with  a  cargo  of  deals  for  the  return 
voyage.    On  the  12th  May  she  arrived  off  the  harbor  of.  Charleston ; 


agent's  report. 


151 


wiis  boanled  by  an  officer  of  the  blockiuliiig  vessel  Niagara,  and  the 
following  entry  made  npon  her  register: 

Hoartlt'd ;  inforiiicil  (if  the  lilndkiiiln ;  iiiid  wnriiod  oft'  tlio  eoast  of  all  the  Southern 
Htiites  by  the  United  States  stt'tiinsliip  Niajjiii;!,  May  \'2,  IHCil. 

The  master  tlu-reiipon  aban(h)ned  his  voyage  to  Charleston  and 
Savannah,  and  went  to  St.  Stephen,  New  iJrnnswick,  where  hedisposed 
of  his  cargo  of  salt  and  took  his  retnrn  cargo  of  deals.  The  memorial 
(claimed,  damages  by  losses  on  her  <;argo  of  salt  and  of  retnrn  freight, 
short  of  what  she  wonld  have  received  from  Savannah  ;  antl  costs,  and 
charges,  and  delay,  to  which  she  was  necessarily  snbjectetl  by  her  change 
of  destination,  £10,372  lOs.  Od. 

The  Ililja  (No.  4()7)  sailed  from  Liverpool  on  the  2r)th  .March,  1801, 
in  ballast,  for  ^'harleston  ;  the  memorial  alleging  that  «he  intended  to 
load,  on  freight  a^  that  port  or  at  Savanmih,  a  return  cargo  of  cotton 
for  Liver[>ool.  Sht  was  boanled  by  an  ollicer  of  the  LTnited  States 
steamship  Niagara  <»tt"  Charleston  Harbor,  on  the  iL'th  May,  and  u 
warning  entered  npcvn  her  register,  substantially  the  same  as  in  the 
case  of  the  iMonmoMth.  The  memorial  alleged  that  the  captain  of 
the  Ilil.ja,  having  an  alicnative  destination  to  Savannah,  was  de- 
barred from  proceeding  to  that  port  by  this  warning;  that  she  there- 
upon proceeth'd  to  Pugwash,  but  gave  no  information  as  to  her  earn- 
ings by  her  return  freight.  Diunages  were  ?tlaimed  to  the  anu)unt 
of  £0,101  ;5.s'.  Id.,  besides  interest — the  amount  of  freight  which,  it  was 
alleged,  the  vessel  wotild  have  earned  by  a  return  cargo  of  cotton  from 
Chaileston  or  Savannah. 

The  sailing  orders  of  the  Hilja  were  not  put  in  evidence  nor  accounted 
for,  though  it  appeared  that  she  sailed  under  wiitten  orders;  nor  was 
any  evidence  adduced  as  to  her  alternative  destination  to  Savannah, 
except  that  of  the  claimant  himself,  examined  on  notice,  who,  after 
many  evasive  and  contradictory  answers  on  cross-examination  as  to  the 
destination  of  the  v^jsel,  tinally  summed  u[)  his  evidence  in  this  regard 
by  saying:  "  1  think  I  mentioned  to  him  verbally  that  if  freights  were 
better  at  Savannah  he  was  to  go  there."  The  claimant  also  testilied 
that  he  had,  through  Mr.  A.  E.  Byrne,  (claimant  in  No.  315,)  had  cor- 
respondence with  the  British  foreign  office  in  respect  to  this  warning 
ott Of  his  vessel,  and  that  he  had  had  like  corresi»ondence  with  Her  Ma- 
jesty's consul  at  Charleston,  through  Messrs.  Kobert  Muir  &  Co.,  and 
that  there  had  also  been  correspondence  between  IMuir  «&  Co.  and  him- 
self, and  between  Henderson,  the  nnister  of  the  vessel,  (since  dead,)  ami 
himself;  but  none  of  this  correspondence  was  either  produced  or  ac- 
counted for.  No  proof  was  made  as  to  the  avails  of  the  return  freight 
from  Piigwash,  except  the  general  statement  of  the  clainuint  in  his 
deposition  that  "  the  whole  voyage  brought  in  a  loss:"  and  on  cross- 
examination  the  claimant,  w^Uen  questioned  as  to  his  transactions  ia 
connection  wi|/U  violating  the  blockade  during  the  war,  and  furnishing 


Ml 


152 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


i  ; 


aUl  to  the  confederate  government,  declined  to  answer  all  such  ques- 
tion8. 

It  appeared  that  an  actual  blockade  of  the  port  of  Charleston  was 
established  by  the  i)resence  of  a  auffl<!ient  blockading  force  at  the  dates 
of  the  respective  warnings  of  the  three  vessels. 

The  three  cases  were  argued  and  submitted  together. 

On  the  part  of  the  United  States  it  was  contended  that  the  wfirning 
entered  upon  the  register  of  these  vessels,  respectively,  so  far  as  appli- 
cable to  any  unblockaded  ports,  was  without  authoritj^  of  the  United 
States,  a  clear  error  on  the  part  of  the  officer  giving  the  warning,  insuffi- 
<;ient  to  preclude  the  further  voyage  of  the  vessels  warned  to  any  un- 
blockaded port,  and  had  never  been  adopted  or  ratified  by  the  United 
States;  that  the  ca.«e  rested  on  the  voluntary  abandonment,  by  the 
masters  of  the  Monmouth  and  the  Boyne,  respectively,  of  their  alterna- 
tive voyage  to  Savannah,  upon  an  incorrect  warning,  unduly  given  by 
an  unauthorized  officer  of  the  United  States,  and  that  for  such  loss  no 
reclamation  Iny  against  the  United  States. 

In  the  case  of  the  Uilja,  it  was  maintained  on  the  part  of  the  United 
States  that  the  proof  showed  no  altenmtive  destitmtion  to  Savannjih  : 
that  the  vessel  was  men^ly  stopped  from  entering  the  blockaded  port  of 
Charleston,  to  which  she  was  destined,  and  that  no  loss  whatever  was 
shown  to  have  accrued  to  her,  except  that  caused  by  her  being  pre- 
vented from  entering  that  port,  and  that  no  proof  was  made  of  actual 
loss  even  in  this  respect;  that  the  non-production,  by  the  claimant  Wil- 
son, of  the  correspondence  with  the  British  foreign  office,  and  with  the 
British  consul  at  Charleston,  as  well  as  his  own  correspondence  with 
his  ciiptain,  Henderson,  and  his  agents  at  Charleston,  Muir  &  Co.,  suffi- 
ciently indicated  that  the  claimant  then  put  his  claim  t()r  compensation 
solely  on  the  ground  of  the  illegality  or  insufficiencry  of  the  blockade  of 
Charleston,  and  that  the  pretended  alternative  destination  to  Savan- 
nah was  an  afterthought,  borrowed  from  the  cases  of  the  Monmouth 
and  the  Boyne;  that  his  own  testimony,  on  which  he  rested  the  case, 
was  upon  its  face  unworthy  of  credit. 

The  counsel  for  the  United  States  also  claimed  that  in  the  case  of  an 
award  of  damages  in  any  of  these  cases,  the  anticipated  earnings  by 
freights  from  Savannah,  at  high  rates,  could  not  be  taken  into  account 
as  elements  of  the  award.  That  such  anticipated  earnings  were  specu- 
lative and  illusory ;  that  the  evidence  showed  that  the  market  at  Savan- 
nah, in  respect  both  of  sales  of  the  outward  cargoes,  and  of  tlie  rate  of 
freights,  was  exceedingly  irregular  and  violent  in  its  fluctuations,  and 
in  effect  a  gaming  market.  That  it  could  not  be  assumed  that  the  ves- 
sels could  have  secured  return  cargoes  at  Savannah  in  season  to  leave 
within  the  time  limited  after  the  establishment  of  the  blockade  there; 
nor  that  they  could  have  secured  such  rates  of  freight  as  were  claimed 
in  the  respective  cases;  and  thatthese  claims  were  of  substantially  the 
same  nature  of  speculative  and  uncertain  prospective  profits,  which 


AGENTS    REPORT. 


153 


were  rcjoctcd  by  the  tribunal  at  Geneva,  in  the  case  of  tlie  clniins  for 
anticipated  earnings  and  profits  of  captured  vessels,  claimed  before 
that  tribunal. 

The  commission  in  the  case  of  the  Boyne,  (No.  21G,)  unanimously 
made  an  award  in  favor  of  the  claimants  for  $.'32,553. 

In  the  case  of  the  Monmouth,  (No.  315,)  they  made  an  award  in  favor 
of  the  claimants  for  $40,843;  Mr.  Commissioner  Fra/er  dissenting  on 
the  question  of  amount. 

In  the  case  of  the  Ililja,  (No.  407,)  the  claim  was  disallowed ;  Mr, 
Commissioner  Ourney  dissenting. 

On  the  general  question  involved  in  these  cases  Mr.  Commissioner 
Frazer  read  an  opinion,  which  will  be  found  in  the  Appendix  O. 


7.  Miscellaneous  cases. 

In  the  case  of  Alfred  Raoul  Walker,  No.  13,  the  claimant,  a  minor, 
by  his  guardian,  alleged  that  he  was  born  in  Charleston,  S.  C,  his  father 
being  at  the  time  of  his  birth  a  British  subject  and  resident  at  Cliarleston, 
as  Her  Britannic  Majesty's  vice-consul  for  that  port  and  ibr  the  State  of 
South  Carolina ;  that  by  the  will  of  Mrs.  Laurens,  the  claimant,  in  May, 
1858,  became  entitled  to  a  legacy  of  $20,000,  to  be  paidtohim  on  coming  of 
age,  and  the  interest  to  be  applied  to  his  support  and  education.  That 
the  executors  of  Mrs.  Laurens's  will  having  filed  a  bill  in  the  court  of 
equity  in  the  State  of  South  Carolina,  for  the  purpose  of  obtaining  the 
protection  of  the  court  in  respect  to  the  trusts  created  by  the  will,  made 
the  claimant  a  party  to  the  bill,  and  placed  the  moneys  belonging  to  the 
claimant  under  the  will  in  the  receivership  and  under  the  control  of  the 
court ;  and  that,  under  the  protection  of  the  court,  the  moneys  so  be- 
longing to  the  claimant  were  invested  in  bonds  c*"  the  Confederate 
States  during  the  war.  That  "by  reason  of  such  investment  for  the 
purposes  of  carrying  on  civil  war,  and  by  reason  of  such  cjivil  war  and 
rebellion,  and  by  the  act  of  the  Government  of  the  Ignited  States  in 
suppressing  the  said  rebellion  and  restoring  the  authority  of  the  Federal 
Government,'' the  claimant's  moneys  were  totally  and  irrecoverably  lost. 
That  the  court  in  question  was  a  tribunal  of  competent  power  and  juris- 
diction to  direct  the  investment  and  charge  of  such  moneys  ;  and  that 
"  the  civil  war,  through  the  act  of  the  Government  of  the  United  States. 
destroyed  the  investments."  The  claimant  claimed  an  award  for  $20,000, 
besides  interest. 

A  demurrer  was  interposed  on  the  part  of  the  United  States  to  the 
memorial,  specifying,  among  other  grounds,  that  the  claimant  was,  by 
the  laws  of  the  United  States,  a  citi/en  of  the  United  States,  and  so 
could  have  no  standing  as  a  British  subject  under  the  treaty  ;  that  the 
alleged  wrongs  were  peri)etrated,  if  at  all,  by  the  pretended  courts  and 
authorities  of  the  so-called  State  of  South  Carolina,  while  not  acting 
under  or  by  the  authority  of  the  Constitution,  laws,  or  Government  of 


\mrr 


164 


AMKRICAN-HRITISII    CLAIMS    COMMISSION. 


!    !  ■■.! 


¥ 
4' 


the  Uaihi'il  Stitis^i,  but  wliile  in  re')ollii)ii  a;:? liint,  tlm  LT.iitol  Stiitns  and 
at  war  with  tiiom,  ami  that  fur  siicli  acts  thii  United  Stiiti'S  wi'n;  not 
liabU';  that  the  cliiniant  alh'jjti'd  that  the  court  of  Sontli  (Carolina  was  a 
court  iiavinjj;  jiii'isdiction  of  the  siibjeel matter  and  of  the  person  of  the 
claimant,  and  e\ereisiii<r  sueh  Jurisdiction;  and  tliat  the  claimant,  by 
his  j^uanlian,  voluntarily  submitted  himself  to  su<;h  Jurisdiction;  that 
he  did  UDt  allege  the  order  or  decree  of  the  court  to  have  been  fraudu- 
lently made,  or  its  trc^atinent  of  tlie  claimant's  property  to  have  been 
excepti(»nal ;  and  that  for  such  action  of  a  judicial  tribunal,  however 
erroneous,  no  claim  could  lie  under  the  treaty.  That  the  alle;;iuion  that 
the  civil  war,  throu;i;h  the  act  of  the  Government  of  the  United  States, 
"destroyed  the  investmetits  of  the  claimant,"  formed  uo  |;round  of 
claim  ajjainst  the  United  States. 

Tiie  case  was  submitted  without  argument,  and  the  (daim  was  unani- 
mously disallowed. 

Ill  the  (!ase  of  Edward  Alfred  Barrett  rs.  The  United  States,  No.  18,  the 
claimant,  resident  in  England  during  the  war,  alleged  that  in  October, 
18(51,  he  juirchased  for  a  valuable  consideration  and  was  still  the  pos- 
sessor and  absolute  owner  of  a  certain  "  cotton  loan  bond"  of  the  Con- 
federate States  of  America,  by  which  the  Confederate  States  bound 
themselves  to  pay  to  the  bearer  £200  sterling,  with  interest  at  7  per  cent, 
per  annum,  semi  annually,  on  the  1st  day  of  March  and  the  1st  day  of 
September  in  each  year,  until  redemption  of  the  principal  at  par.  That 
the  (lovernmentof  the  United  States,  in  the  year  1805,  "seized  all  the 
public  assets  of  the  said  Confederate  States  and  especially  a  very  large 
quantity  of  cotton,  hypothecated  by  the  said  Confederate  States  govern- 
ment for  payment  of  the  said  cotton  loan,  and  thus  ])revented  those 
States  from  paying  their  cotton  loan  bondholders."  That  in  consequence 
of  such  seizure  by  the  Government  of  the  United  States,  the  principal 
of  said  bond  remained  unpaid,  and  no  interest  had  been  paid  thereon 
from  the  1st  day  of  March,  1865.  The  claimant  claimed  damages  £200 
beijiides  interest. 

The  memorial  came  to  the  hands  of  the  agent  of  the  United  States  on 
the  14th  November,  1871.  Though  insignilicant  in  amount,  it  involved 
a  principal  of  the  highest  importance ;  and  it  was  understood  that  it  was 
presented  as  one  of  a  large  number  of  claims  of  the  same  character  al- 
ready in  the  hands  of  Her  Majesty's  agent,  and  iuvolving  claims  against 
the  United  States  on  laccount  of  debts  of  the  late  so-called  Confederate 
States  to  very  large  amouuts.  The  agent  of  the  United  States,  believ- 
ing the  claim  to  be  neither  within  the  letter  or  spirit  of  the  treaty,  and 
to  be  one  which  ought  not  to  have  been  presented  by  Her  Majesty's 
government  to  the  commission,  immediately  sent  to  the  Secretary  of 
State  of  the  United  States  a  copy  of  the  memorial,  with  the  following 
letter : 


mk 


AGENTS    UEPORT. 


155 


Ol  TirK  Ol"  TMK  AOK.NT  OK   IIIl'.  rMTKM  S  lATKS 

IJki'okk  tiik  Mixi;i>  Okmmission  on  Amkimian  and  Mm  iisii  Ci.Anm, 

j\o.  lO'A  l-'ijtrdilli  StnrI,  ndsliiiinloii,  J),  ('.,  yonmhi-r  1.'),  1H71. 
Siu:  1  liavc  till)  lioniir  to  .siiUmit  lificwiili  a  t'Dpy  (if  tlu)  iin'mDrial  of  Klw.ml  Alfred 
Ilarrctl,  yt'HttTdiiy  lilcd  with  tlii'  \Va.s!iiii;;tiiii  oiiiiiiiiissioii  iinilcr  tin-  Mritisli  treaty. 

Yi'i  will  noli(M)  tliat  it  is  liascd  Holcly  on  an  alli-f^ftl  liability  of  tlm  Uiiitcil  StatcH 
for  piiymi'iit  of  tlu'  oDttoii  Ii)aii(su-i!iillt"l)  of  tln^  late  (' niff  liT.itn  StatiM,  (m*  (talU'il.) 
It  is  tli(^  lii'st  claim  of  lliis  rliaracttu-  wliiidi  has  Ihmmi  iircsiMitnl  to  tht;  coiiiinissioii. 

lii'licviii;;  such  claiiiiH  to  bu  unliit-ly  outside  tin;  siibiiiissioii  iiiadt;  by  Mid  tw(*lftli 
Hiticlc  of  the  treaty,  and  that  tin;  (.iovcrnnKMit  of  the  riiiled  States  never  hiis  troii- 
siMited  to  Ki\l»niit  to  arliitiation  any  ipu-stion  of  their  liability  for  debtn  of  this  eharao 
ter,  and  that  it  is  not.  within  my  prcjvineo  to  discuss  or  coiiHi'iit,  to  thodiscnssion  of  the 
((Ui'stion  of  such  liability  beforo  tho  conimlssion,  I  be;;  to  submit  tlio  cast*  to  yon  for 
speeitie,  instrnetion. 

The  questions  involved  Hceni  to  pertain  mor«  directly  to  tho  diplomatic  relations  of 
the  two  coniitries  than  to  any  mere  (piestion  of  leyal  practice  or  conatriiction. 
Very  respectfully,  your  oUediont  servant, 

UOH:  S.  irALK, 
Jijent  and  Counarl  of  thv  I'liiled  Stalca. 
lion.  riAMir/roN  Fisu, 

SiTirtary  of  Slate. 

1  am  advist'd  that  the  Ooverninont  of  the  United  States  thcreiipou 
iinmediatel.v,  through  Mr.  Seheuck,  the  minister  of  the  ITnited  States 
at  the  court  of  St.  James,  protested  ayaiiist  the  presentation  of  su<.'h  i\ 
chiim  as  not  within  the  terms  of  snbmi.ssion  by  the  treaty,  and  requested 
of  tlie  Biitish  government  that  the  chiim  be  withdrawn.  This  request 
not  having  been  complied  with,  tlie  ay;e||t  of  tlie  United  States,  under 
specilic  instructions  from  the  Secretary  of  State,  on  the  9th  December, 
IS71,  tiled  witii  tho  commission  a  motion  to  dismiss  the  memorial  for 
want  of  jtirisdiction,  as  stating  no  case  for  a  claim  against  the  United 
States  within  the  intent  of  the  treaty.  On  this  motion  the  agent  of  the 
United  States,  on  the  13th  December,  1871,  submitted  a  printed  argu- 
ment, as  follows : 

BKFOUK   TIIK  MIXKl)  COMMI.SSION   OS   AAIKIJICAN    AND   UKITISH   CI.AIM.S. 


Edwakd  Alkhkd  BAniiiar 
The  UxrriiD  Statics. 


>No.  18. 


Argumvnt  for  tlie  United  States  on  motiom  to  dismiss. 

Ry  tho  twelfth  article  of  the  treaty  tho  claims  a^jfainst  thu  United  States  siilMnitted 
to  the  adjudication  of  tho  commission  are  those  of  subjects  of  H(U-  Britannic  Majesty, 
"arising  out  of  acts  committed  against  the  persons  or  property  of  subjects  of  Her  Bri- 
tannic Majesty  "  during  the  time  limited  by  that  article. 

This  language  is  plain  and  unambiguous.  It  limits  the  claims  to  those  teclinically 
known  as  "  torts,"  aud  those  "  torts  "  committed  against  tho  "  persons  or  property  "  of 
the  claimants. 

It  could  not  1)0  contended  that  the  claims  so  submitted  would  include  a  claim  on 
contract  against  the  United  States,  though  founded  directly  on  a  contract  duly  exe- 
cuted by  an  authorized  ofiQcer  of  that  Govornnieut,  and  plainly  violated  by  that  Gov- 
ernment. 

Much  less  can  it  be  hold  to  include  a  contract  executed  by  aud  in  the  name  of  an  in- 


.  ^1  'I 


.^■. 


■  ' : 


"..  .; 


riiOT— 


166 


AMERICAN-BRITISH    CLAIMS   COMMISSION. 


1        ,     .    ' 


r;i 


Hiirn^'-tiittmry  or^nni/.nt.ion,  in  violiitioii  of  thn  CoiiNtitution  ami  laws  of  tlio  Unitnl 
StatttH,  NtHikiii);  tlio  NiibvorNion  of  that  Ouvuriiiiiuiit,  levying  war  upon  it,  and  tinully 
8np|iruHH<>il  hy  itH  power. 

NotwiliiHtandiiiK  tlioHnncionH  attempt  to  iliHgiiiHO  the  true  nature  of  thin  claim  under 
an  allegation  of  tliu  <le.strnction  hy  the  United  StateH,  in  war,  <»f  property  "  liypntin'- 
cated"  hy  tins  Ho-cal!ed  Confederate  StateH  for  the  necnrity  of  their  «lehtM,  it  is  nvilly 
neither  more  n(»r  less  than  a  ehiini  to  hohl  the  Unittsd  Htaten  lialde  for  tiie  debts  ot 
thoHe  lately  in  rehellicni  against  them,  eontracted  in  the  very  conrMo  of  sueli  rebellion, 
in  aid  of  it,  and  from  which  it  drew  its  chief  support. 

To  believe  for  a  moment  that  the  United  States  ever  intended  to  submit  sneh  a<|Ui's. 
tion  to  arbitration  would  be,  at  the  same  time,  to  do  violence  to  the  language  of  the 
treaty,  and  to  falsify  the  history  of  that  Ciovernmont  by  imputing  to  it  a  pusillanim- 
ity wholly  unwarranted  by  anything  in  its  past  career  or  present  condition.  It  would 
be  to  believe  that  the  United  States  have  delil)erately  signilied  their  willingness,  at 
the  award  of  this  commission,  to  pay  debts  contracted  by  their  defeated  enemies,  for 
the  solt*  purpose  of  the  tlismemberment  of  their  Government  and  the  destruction  of 
their  liberties  ;  debts  held  in  the  deepest  abhorrence  by  tbe  unanimous  sentiment  of 
their  loyal  people,  and  debts,  the  assumption  or  payment  of  which,  in  any  form,  by 
the  United  States,  or  any  one  of  their  constituent  States,  has  been  i)rohibited  by  solemn 
constitutional  enactment,  by  that  fuiulauiental  law  to  which  ill  treaties,  a  j  well  as  all 
statutes,  are  subject. 

When  the  Government  and  p«!ople  of  the  United  States  shall  acknowledge  that  in 
their  recent  succc^ssful  struggle  with  rebellion  they  were  wholly  in  the  wrong,  and  the 
rebels  wholly  in  the  right ;  when  they  shall  determine  to  compensate  the  rebels  them- 
selves for  their  losses  in  person  and  property  by  the  war,  to  pension  their  widows  nnd 
orphans,  and  to  repudiate  the  debt  of  the  Federal  Government  contracted  for  the  »»</>- 
presaion  of  the  rebellion  ;  then,  and  not  till  then,  will  they  consider  the  question  of 
paying  the  mercenary  foreign  substyibcrs  to  the  rebel  loans,  more  criminal  in  their 
eyes,  or  at  least  sharing  more  of  their  abhorrence,  than  any  ot'  r  participants  in  the 
gigantic  crime. 

The  language  of  the  treaty  itself  is  believed  to  be  abundantly  specific  in  exclnding 
claims  of  the  character  of  that  in  ({uestion.  If  any  ambiguity  eonld  bo  found  in  that 
language,  it  would  be  fully  removed  by  reference  to  the  protocols  of  conference  of  the 
.Joint  I^ligh  Commissioners,  and  to  facts  of  universal  cogni/ancu  in  connection  with 
them. 

By  the  36th  protocol,  under  the  head  of  "Articles  XII  to  XVII,"  it  appears  that  the 
American  commissioners,  when  invited  by  their  British  <'olleagnes  to  include  within 
the  terms  of  the  treaty  another  class  of  claims  by  Her  Mnjesty's  subjects  against  the 
United  States,  declined  so  to  do,  saying,  "  That,  in  their  view,  the  subject  was  not 
enibraced  in  the  scope  of  the  correspondence  between  Sir  Edward  Thornton  and  Mr. 
Fish  under  either  of  the  letters  of  the  former  ;  and  that  they  did  not  feel  justified  in 
entering  upon  the  consideration  of  any  class  of  claims  not  contemplated  at  the  time  of 
the  creation  of  tbe  present  com  mission,"  &c. 

Referring  to  the  correspondence  between  Sir  Edward  Thornton  and  Mr.  Fish,  named 
in  the  protocol,  it  will  be  found  that  the  first  aiention  of  or  reference  to  the  claims 
covered  by  the  twelfth  article,  is  contained  in  the  letter  of  Sir  Edward  to  Mr.  Fish, 
under  the  date  of  February  1,  1871,  and  that  iu  that  letter  ho  designates  them  as 
claims  "arising  out  of  acts  committed,"  &c.,  the  same  language  which  was  substr 
quently  copied  into  the  treaty,  and,  with  the  addition,  by  w.ay  of  giving  greater  point 
and  accuracy,  of  the  further  words,  "  against  the  persons  or  property  of  subjects  of 
Her  Britannic  Majesty." 

It  must  bo  borne  iu  mind  that  at  the  time  of  this  correspondence,  as  well  as  at  the 
time  of  the  conclusion  and  ratification  of  the  treaty,  the  Constitution  of  the  United 
States  contained  an  express  prohibition  of  the  assumption  or  payment  of  these  debts 
by  the  United  States  or  by  any  State.    That  every  officer  of  the  United  States,  execu- 


ikittrik 


the  8up- 


AOENTS    UKI'ORT. 


157 


tive,  l(•KiMIiltiv(^  ami  Jiid'h^iiil,  wiis  tliii.t  IhhiikI  by  tho  Hiit^ri'iiKi  Iiiw  of  tlio  liiinl  mul  by 
liJM  otitli  <>t  ol)t(M^  to  tr<Mit  as  iittrrly  null  any  |>ri)viMloir  of  any  rn^ity  or  Htatiitti  in  <-oii- 
travt'ntion  of  that  t-onHtitutional  prohihition,  nniliM'  pcnatty  of  iinpoiMtliiniMit  or  itH 
ei|Mival>'nt.  That  tint  t'xi.stfiuto  of  this  oon.ititutional  provision  was  witll  known,  not 
only  to  tin-  .S-cn-tary  of  Statf,  tlu!CoinuiiN»iontrH,  tho  Chief  Kxc'untivo,  and  tho  Sunato 
of  the  United  States,  al!  (tarties  on  the  part  of  the  Onlted  Statos  to  thu  treaty  or  tu 
thlH  preliminary  forrespondence,  hut  wuh  etpially  well  known  to  the  British  minister 
and  to  the  Itritish  lli,>{h  ('onimissiomirs.  It  cannot,  therefore,  he  for  a  lonment  lielieveil 
that  the  Ai  leriean  Seeretary,  in  his  aeeeptanee  of  the  proposition  of  Sir  Ivlward  by 
his  letter  of  Fehrnary  It — tho  President  of  the  United  Statics,  in  (Ureetin;^  that  iieeept- 
unce— th«  Anntriean  inenibers  of  tho  Joint  Ili^Ii  (.'(nnmission  in  negotiating;  and  eon- 
clndin;;  the.  treaty — the  President  in  ratifying;,  or  the  Senate  of  the  United  States  in 
advising  and  eoiHentinjr  to  tho  sanio — ever  intended  to  eniboily  in  it  aprovisimi  wliiuk 
shonld  vi(dali)  the  fiimlainental  law  of  the  nation,  or  th;it  tiie  ministers  ami  coniniia- 
MionerHof  Her  Mritanie  Maje.sty  so  understood  tliem  to  intend. 

In  case,  too,  of  any  possihlo  amhignity,  it  must  bo  borne  in  mind  that  this  lan;;naKO 
first  emanated  t'roni  Her  Majesty's  minister,  and  that  Ity  the  .siittled  rules  of  dipl  tmatio 
us  well  as  le^al  construction,  tho  party  omi)loyin;r  ambijrnons  lan<;ua^e  is  tlebarred 
from  any  bemlit  of  thuambi;;nity. 

Itut  tho  United  States  insist  that  tho  lan^ua;re  is  not  ambi;ruous;  that  it  is  plain  and 
explicit,  and  that  within  it  a  claim  of  this  eharactia-  has  no  place  amon<r  tho  nnit- 
ters  submitted  by  the  treaty  to  this  commission  for  its  decision. 

The  uiidersij^ned  is  warranted  in  saying  thatr.bo  words  "arisiufj  out  of  ants  commit- 
ted," were  deliberately  and  intentionally  inserted  by  Sir  Kdward  in  his  letter  of  Int 
February,  rept.'ated  by  Secretary  Fish  in  his  letter  of  Mil  February,  and  copieil  and 
elaborated  by  the  Joint  IliK'i  Commissioners  in  tho  twelfth  arti<de  of  tint  treaty,  for 
th<;  express  purpose  of  excluding  all  possible  claims  of  tho  nature  of  the  debts  of  the 
States  lately  in  rebellion,  singly  or  under  any  attem[)ted  and  abortive  <ni;anization. 

If  tho  uonuHol  for  tho  United  States  doomed  himself  at  liberty  to  discuss  the  merits 
of  the  claim  hero  ]n'osouted,  as  within  tho  jurisdiction  of  the  commission  to  decide, 
tho  answer  to  tho  claim,  on  its  merits,  would  bo  palpable,  solf-snggestinj;-,  ami  conclu- 
sive. 

But  lie  expressly  disclaims  all  intention  of  such  discussion,  and  asks  the  dismission 
of  tho  claim  on  tho  gronnd  spocilicd  in  his  motion. 

ROB:  S.  HALE, 
Agent  and  Counsel  of  the  United  iStateH,  ifo. 

On  the  14th  December,  1871,  the  coininissiou  nuule  and  tiled  their 
decision,  unajiiinously  dismissing  the  elaim,  as  follows  : 

Office  of  thk  Mixed  Co-mmis.sion  on  Bitrnsn  an-d  Amkimcan  Claims, 


Uni>kk  the  Theaty  of  May  H,  1871, 

(f'ashintjton,  D.  V.,  December  14,  le71. 


Edwakd  Alfked  Bahhett  ) 

r«.  >No. 

The  United  States.       > 


18. 


The  comnnssion  is  of  opinion  that  the  United  States  is  not  liable  for  tlie  payment  of 
debts  contracted  by  the  rebel  authorities. 

The  rebellion  was  a  struggle  against  the  United  States  for  the  establislimeut  in  a  por- 
tion of  the  country  belonging  to  the  Uiuted  States  of  a  new  state  in  tho  family  of 
nations,  and  it  failed.  Persons  c«>ntracting  with  the  so-called  Confederate  States  volun- 
tarily assumed  tho  risk  of  such  failure  and  accepted  its  obligations,  subject  to  the  para- 
mount rights  of  the  parent  state  by  force  to  crush  the  rebel  organi:^atiou  and  seize  all 
its  assets  and  property,  whether  hypothecated  by  it  or  not  to  its  creditors.  Such  bellig- 
erent right  of  the  United  States  to  seize  and  hold  was  uot  subordinate  to  the  rights 


•f!ff 


'ft- 


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|: 


i' 

n 

(»' 

iy  .'. 

4v 

t-f 

f^m^ 


H'i) 


158 


AMERICAN-BRITISH    CLAIMS   COMMISSION. 


ri 


of  creditors  of  tlin  nOn'l  oijjuMiziitiori  proiittvl  by  contnict  with  tlin  laltor;  ijiid  when 
such  stiiziini  was  iictiially  ai!f^(Hi!|ili>iii)il  it  put  an  oiid  to  any  claim  to  tlin  j)roiK!rty 
wliirli  tli«'  creditor  otlicrwisc  niij;lit  have  had. 

We  arc  therefore  of  opinion  that  after  huc1>  Hnizure  the  chiiinant  had  no  interest  in 
the  i-'operty,  and  the  claim  is  di.-imi.«s"jd. 

I>.  (^OKTI, 

JAS.  S.  KKAZK.'i, 

KUS.SHLL  (illiXKY, 

('tntimiinioiicrK. 

In  view  of  tlic  iUtitude  taken  by  the  I>ritish  jrovcrnnu'nt  upon  the 
preseiitatioi!  of  tlieelaiin  for  so  caHed  indirect  (hiinaycs  in  tlie  "  Case  "of 
the  United  States  belbre  the  tril'-...ial  ot  arbitration  at  Geneva,  and  of 
tlie  intense  feelinj;-  manifested  by  the  J*ritish  nation  throujiii  the  press 
and  in  Parliament  and  elsewhere  on  that  subject,  [  have  deemed  'his 
casr  worthy  of  speeifie  and  lull  report.  The  case  involved  in  ])rinci[>le 
the  question  of  the  liability  of  the  United  States  for  the  entire  debt  of 
the  late  Uonfederate  States.  If  within  the  jurisdiction  of  the  commission, 
h  was  plain  that  the  United  States  might,  by  the  decision  of  the  com- 
uiission,  be  held  liabh^  for  so  much  of  that  debt  as  was  held  at  the  ter- 
mination of  the  war  by  I5ritish  subjects,  the  amount  of  which  is  of  course 
a  matter  of  conjecture  nunvly,  but  whii-h  doubtless  amounted  to  many 
Innnlred  millicmsof  (lollars.  It  isimpos.<ible  to  believethat  the  (fovern- 
nient  of  the  Unite<l  States  could  ever  have  designed  to  submit  the  qnes 
tion  of  such  liability  to  arbitnitiou  ;  and  it  is  certain  that  the  people  of 
the  United  States  would  never  have  consented  to  the  submission  in  any 
form  of  uch  a  question  to  arbitration,  or  to  tiny  mci'sures  of  which  the 
possible  re  ult  might  be  to  charge  them  with  the  paynuMit  of  the 
debt  of  the  Confederate  States  or  any  part  of  such  (iebt.  It  is  dillicult 
to  i-ee  why  the  presentation  of  such  a  claim  to  the  coinniissi(Mi,  and  the 
claim  made  by  such  presentation  that  the  commission  had  juiisdi(!tion 
under  the  treaty  to  make  an  award  against  the  United  States  on  a<;count 
of  this  vast  debt  of  their  la;  »  enemies,  the  payment  of  which  iu  any 
form  ha<l  been  i)rohil)ited  l>y  constitutional  enactment,  might  not 
naturally  an<l  properly  have  produced  among  the  people  of  the  United 
States  (pdte  as  intense  an  excitenu'ut,  and  quite  as  earnest  ami  vigorous 
demonstrations  of  hostility  to  such  sulunission  as  were  manifested  by 
the  people  of  (treat  Mritaiu  in  respect  of  the  claims  for  indirect  dam- 
ages at  Cene.a.  It  is,  however,  worthy  of  note  that  during  its  pemlency 
befbie  the  commit  on,  the  fact  of  the  present.ition  of  such  a  claim  was 
iu)t  even  in  the  public  press  or  in  Congress  or  in  any  other  manner 
brought  to  po;)ular  notice,  and  no  angry  demonstrations  were  anywhere 
uiade  in  relation  to  it. 

The  disposition  of  th**  case  before  the  commission,  both  in  substance 
and  form,  sc^ems  to  iiave  been  entirely  satisfactory  to  both  nations;  and 
lui  analogy  may  perhaps  be  noted  between  t!;,  manner  in  which  the 
conunissiou  disposed  of  this  claim,  and  that  subse<piently  adopted  by 


rv 


AGENTS    REPORT. 


159 


the  tribiinul  rtt  Guneva  iu  respect  to  the  claims  for  the  so-called  indirect 
thuna{?es. 

In  theeaJi9  of  William  Adam,  (Xo.  72.)  the  claimant,  a  r>ritish  subject 
domiciled  in  England,  allc}jfe('  that  he  was.  in  1<S<Jl',  Xlw  owiici'  ol'trcitjun 
bimda  of  a  railroatl  company  within  tiie  United  States,  anmnnting  to 
,$.1,(»00  i)ii!U'ipi"ii,  with  interest,  i)a.vabl(^  Italf  yearly,  at  six  per  cent,  per 
annum,  the  interest  n|)()n  whi(;h  had  been  rennlarly  i)aid  in  i-])e(ie  up  to 
tlie.Ust  December,  tS(51.  Tliat  in  the  year  I.SOL',  the  Confrnss  ot  the 
United  States  passed  a  law  makinf?  paper  njoney  a  lejjal  tcndci-  without 
any  protection  to  preexisting  contracts;  and  ;hat  immediately  after 
that  law  the  paper  money  of  the  United  States  became  deprciriatetl  in 
value,  ajid  the  clain!>nt  was  thenceforward  compelled  to  receive  payment 
of  his  interest  in  such  depreciated  ciirn'^iicy,  and  that  the  bomls  them- 
selves and  the  prospective  interest  to  become  due  thereon,  had  likewise 
become  depreciated  in  consequence  of  the  same  legislation.  That  the 
Supreme  Uourt  of  the  United  States  had,  in  1871,  adjudj^ed  the  act  of 
18()li  valid  in  its  application  to  i>re-existins'  debts.  He  submitted  with 
his  memorial  a  computation  of  his  los.ses  in  the  premises,  and  claimed 
damajfcs  $;),;UH),  besides  interest.  A  demurrer  was  interposed  to  the 
memorial  on  behalf  of  the  United  States,  on  the  ground  that  it  stated 
nucase  within  the  jurisdiction  of  the  commission,  and  no  facts  .showing 
any  liability  for  com))ensation  to  the  claimant. 

The  commission  u'ianimously  made  an  award  as  follows: 

The  conirnissioiiers  are  of  opijiion  tliat  tlio  inattcrs  allf{.'cil  in  the  incinoiial  do  not 
constitiitu  llio  basis  of  i;iiy  valid  claim  ajijainst  the  Uniti'd  Stati-s.  The  claim  is  tliere- 
lorc  dimillowed. 

In  the  case  of  Joseph  W.  Koach,  No,  1.54,  the  claim  was  for  the  value 
of  thebrij^antine  ^ladeiraand  hercar<;o,  wlsich  wasalleo'ed  to  have  been, 
ou  the  .'{d  October,  ISO;?,  run  into  by  the  (3ly<le,  a  stean)er  transport 
owiu'd  by  the  United  States,  and  the  vessel  and  her  cargo  thei'ebysnnk 
and  totally  lost.  That  the  coUisicn  took  place  in  the  course  of  a  law- 
ful voyage  of  the  Madeira  from  the  port  of  Saint  John's,  I'orto  IJico,  to 
the  i)ort  of  New  York  ;  and  that  the  Clyde  was  then  upon  a  voyage  for 
the  Government  of  the  United  States,  and  under  the  eliarg«»  (»f  (»llicers  of 
that  Government.  That  the  collision  happcMied  entirely  through  tl  e 
neglect  and  dt  "ault  of  the  otlicers  of  the  (M.vtle.  Tho  memorial  claiujcd 
damages  $1  ^OtJO..")!),  besides  interest.  The  proofs  tiled  sustained  the  al 
legations  in  the  memorial  as  to  the  loss  of  the  V(>.ss«'l  and  cargo  by  the 
default  of  the  otlicers  of  the  ('lyde,  and  showed  that  the  matter  had  bet  n 
investigated  by  the  claims  commissijm  of  the  War  DepartUK'iit,  and  a 
report  was  made  by  that  commission  in  January,  l.S(»7,  assessing  the 
damages  of  the  claimant  at  $11,373.08,  besides  inteiest.  The  only 
qiu'stion  raised  in  the  ca.se  was  as  to  the  aujount  of  damagi's  to  be  j  I- 
losved.    Tiie  commission  unanimonsly  tiwardcd  the  clainmnt  ^(14,081. 


■1 


u^?-' 


160 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


I    i 


;i 


Cliiim  of  William  Scott  Millar,  No.  157.  The  memorial  iu  this  case 
alleged  that  the  claimant,  a  British  subject  domiciled  at  New  Orleans, 
was,  on  the  li.lth  September,  18(U,  the  owner  of  330  bales  of  cotton,  then 
worth  $223,253.  That  on  that  day  the  cotton  was  unlawfully  seized  and 
taken  from  his  possession  by  a  supervising  si)ecial  agent  of  the  United 
States  Treasury  Department,  and  was  proceeded  against  for  forfeiture 
to  the  United  States,  by  libel  of  information  filed  in  the  United  States 
district  court  for  the  district  of  Louisiana.  That  the  claimant  appeared 
in  that  suit,  and  claimed  restitution  of  the  cotton,  but  that  it  was  de- 
taiiu'd  till  December,  1804,  when  it  was  surrendered  to  him  upon  the 
execution  of  a  bond  by  him  with  sureties  to  the  United  States,  condi- 
tioned to  abide  the  decree  of  the  court  upon  the  libel.  That  between  the 
date  of  the  seizure  and  the  date  of  the  release  the  cotton  largely  depre- 
ciated iu  value,  and  the  claimant  was  also  compelled  to  pay  large  sums 
by  way  of  costs.  Damages  were  claimed  by  reason  of  the  dei)reeiation 
in  value  and  the  costs  paid,  $1)0,145,  besides  interest. 

The  proofs  showed  that  the  (iottou  in  question  was  purchased  at 
points  within  the  confederate  military  lines  in  the  State  of  Mississippi, 
under  alleged  permits  issued  by  a  special  agent  of  the  United  States 
Treasury  Department,  and  was  seized  on  its  way  through  those  military 
lines  and  into  the  territory  held  by  the  United  States  forces.  The  dis- 
trict court  dismissed  the  libel  for  confiscation  with  costs.  No  claim  for 
damages  by  reason  of  the  seizure  appeared  to  have  been  interposed  by 
the  claimant  in  that  court,  and  no  damages  were  there  awarded  him. 

On  the  part  of  the  claimant  it  was  contended  that  the  de<;ree  of  ac- 
quittal by  the  district  court  without  certificate  of  probable  cause  conclu- 
sively established  the  seizure  as  wrongful.  That  the  United  States  were 
responsible  for  tiie  seizure  as  made  by  an  authorized  agent  of  the  Treas- 
ury Department  in  the  line  of  his  duty  and  under  color  of  acts  of  Con- 
gress. Antl  that  the  act  of  the  agent  in  making  the  seizure  had  been 
expressly  adopted  by  the  Government  by  instituting  proceedings  for  the 
forfeiture  of  the  proi>erty.  The  counsel  for  the  claimant  cited  (lelston 
i'.-*.  White,  (3  Wlieat.,  24(},  and  casus  there  (iited;)  The  Appollon,  (9 
Wheat.,  .302;)  Hall  rs.  Warning,  (2  McLean,  332,  ami  cases  there  (;ited  ;) 
The  Caledonian,  (4  Wheat.,  100;)  Taylor  v,i.  United  States,  (3  Mow.,  107.) 

On  the  pai't  of  the  United  States  it  was  maintained  that  the  proofs 
conclusively  showed  the  purchase  of  the  property  by  the  claimant 
within  the  enemy's  lines,  and  his  attempted  transportation  of  the  same 
througli  those  lines  into  the  Federal  jurisdiction,  to  have  l)een  illegal 
and  not  warranted  by  his  permits;  that  the  cotton  shouhl  have  been 
condemiHMl  by  the  district  court;  that  the  decree  of  that  <!ourt  was  not 
conclusive  against  the  United  States  ui>on  the  claim  now  preferred  for 
damages,  and  that  the  commission  were  entitled  to  look  into  the  proofs 
und  ailjinii(;ate  upon  the  (piestion  of  the  liability  of  the  United  States 
for  damages  as  an  origifnit  question;  that  the  claimant  might  have 
presented  and  pros<icuted  his  claim  for  damages  against  the  United 


AGENTS    J{1:poK'T. 


161 


illegal 


States  in  tlio  district  court  in  tJK'  action  brouj;lit  ajjainst  liiin  for  for- 
t'oituro,  and  niij;lit  thcrr  have  rocovcrcil  liis  daniajics  it' lawfully  entitled 
to  the  same;  and  that  until  he  had  exhausted  his  remedy  before  the 
tribunals  <»f  the  United  States,  he  had  no  standin<j^  to  nnUve  reelania- 
tion  before  the  commission.  The  commission  unanimously  disallowed 
the  claim. 

Amos  JJigland's  claim,  No.  l!ll),  was  for  damages  for  the  detention  of 
the  liriiish  steamship  Tubal  C'ain,  in  the  port  of  New  York,  from  the 
Sth  April  to  the  KJtli  Jidy,  l.S(>.'J.  one  hundred  days;  and  damages  were 
claimed,  $3.S,.'}78,  besides  interest.  The  <tlaimant  was  a  ISritish  mer- 
chant domiciled  in  the  city  of  Xew  York,  llecihartered  tlii^  Tubal  Cain 
to  one  3Iora  lor  a  voyage  to  Matamoras  ria  Havana  and  back  to  Xew 
York.  She  was  loaded  by  the  <-harterer,  and  on  the  Hth  A[)ril,  being 
ready  to  sail,  clearance  was  refused  by  the  custom-house  authorities,  and 
she  was  seized  by  the  United  Stales  authorities,  the  collector  of  the 
])()rt  and  th<'  military  commander  of  the  department  concurring  in  the 
seizure,  on  the  charge  that  slie,  was  undertaking  to  carry  on  an  illicit 
voyage  between  New  York  and  the  blockaded  \nn\s  of  Texas,  and  was 
carrying  out  contraband  of  war  <lestined  for  the  confederacy,  and 
was  also  carrying  i)assengers  engaged  in  contraband  trade  with  the 
enemy,  on(M)f  them  being  an  agent  of  the  UonfiMlerate  States  govern- 
ment engaged  in  the  luirchase  of  munitions  of  war.  Mr.  ICdwards 
IMenepont,  of  New  York,  was  commissioned  by  the  \Yar  Department 
to  examine  and  leport  uj)on  the  case.  On  tlui  iMIth  ^[ay  he  made  his 
rei)ort,  sustaining  in  substance  the  chargt  s  named  as  to  two  passengers, 
IMum  and  Sutton,  whom  he  found  having  contraband  goods  on  board 
intended  for  the  Texas  tra<le,  and  engaged  in  the  service  of  the  enemy  ; 
hut  reported  that  neither  the  owner  or  chartcicr  of  the  vessel  had 
knowledge  that  any  of  the  goods  shii)ped  were  (tontraband  of  war  or 
were  intended  for  illegal  trade.  lie  further  reported  that  there  was 
reasomible  cause  for  detaining  tin;  vessel,  but  recommen«led  that  the 
vessel  be  discharged  from  (tustody,  and  the  goods  be  deliveied  up  to 
the  owners  on  their  application  and  receipt  forthesiime.  The  reiiort  was 
approved  by  the  Solicitor  of  the  War  Department,  and  the  vessel  was 
suri'endered  on  the  10th  .Inly  and  her  (-argo  retnrnc«l  to  the  shippers, 
with  the  exception  of  the  goods  of  IMum  and  Sutton. 

On  the  part  of  the  United  States  it  was  contended  that  the  refusal  to 
clear  the  vessel,  her  detention  for  examination,  and  the  unlading  of  her 
cargo  for  that  pnri)ose,  were  lawful  acts;  that  they  were  done  under  the 
authority  of  tiie  regular  custom-house  ollicials  of  New  York,  and  that 
the  fact  that  those  ollicials  were  aided  by  the  ndlitary  authorities  in  no 
respect  affectted  the  character  of  tlu'  transaction  ;  that  the  facts  of  the 
case  were  such  as  in  a  i)rize  court  would  have  certainly  justilicd  the  cap- 
ture as  one  by  "  probable  cause  '  if  the  vessel  had  been  captured  on  the 
high  seas  and  brought  into  port  and  libelled  as  prize;  that  the  same 
11  II 


>  ■  » 


il  ■ 


*, 


1G2 


AMKIilCAN-BKITlSlI    CLAIMS    CO.MMISSIOX. 


te 


I     'i'l 

if 


if 

• 

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t« 

1 

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1 

3!SSB!ff 


iniiicii)los  wore  to  be  a])i)lie(l  in  the  consideration  of  this  case  of  deten 
tion,  and  that  no  liability  existed  aj^ainst  the  United  States  on  account 
of  it. 

The  coniniissiou  nnaninionsly  nuule  an  award  in  favor  of  the  claim- 
ant for  $4,800.  1  am  advised  tliat  tiiis  award  was  made  in  resj»ect  only 
of  the  detention  of  the  vessel,  between  the  date  of  ^Ir.  I'ierrepont's  re 
port  and  her  linal  discharf^fe,  the  commission  holdin<;' that  detention  un- 
reasonable. 

In  the  c;ue  of  Thomas  (Jrant,  Xo.  211,  the  claimant,  in  addition  to  his 
claim  for  to^^acco,  captured  in  runnin{^  the  blockade  from  Wdmington, 
before  reported,  claimed  $7,000  dama<;;es  for  the  alleged  breaking  up  of 
his  lawful  business  as  a  manufacturerof  tobacco  by  the  "territic  shelling- 
of  the  city  of  Petersburg,"  by  the  United  States  forces  in  18G4  and  180o, 
"which  was  so  violent  at  times,  during  the  period  of  ten  months,  that 
no  business  could  be  regularly  and  successfully  conducted  within  the 
city  limits."  He  also  claimed  the  further  sum  of  $1,44()  for  his  interest 
in  a  quantity  of  tobacco,  which  he  alleged  was  lost  in  South  Carolina 
while  in  the  course  of  transportation  to  remove  it  out  of  the  reacli  of 
the  Federal  Army  under  Cieneral  Sherman.  It  was  i»ot  alleged  that  the 
loss  was  caused  by  tlie  United  States  forces  exce[)t  as  the  remote  cause 
of  the  removal.  On  demurrer  the  commission  unanimously  disallowed 
the  claiu). 

In  the  case  of  William  Cleary,  No.  2-'0,  the  claimant,  among  other 
claims  set  up  in  his  memorial,  daiuuMl  $r),000  damages  for  an  alleged 
>iolent  assault,  wounding,  and  ill  treatment  committed  upon  him  by  ii 
private  soldier  of  the  United  States  Army,  at  Savannah,  in  March,  18(m, 
by  which  he  allege.d  tliat  his  life  was  endangered  and  himsc^lf  disabled 
for  some  nn)nths.  No  allegation  or  proof  was  made  connecting  any  ofli- 
cer  of  the  United  States,  or  any  other  person  exeei>t  the  assailant,  with 
the  alleged  assault.  The  commission  made  an  award  in  favor  of  tlie 
claimant  in  respect  ot  jtroperty  taken  for  tiie  use  of  the  United  States, 
but  gave  nothing  on  account  of  the  alleged  assault. 

In  the  ease  of  Sheldon  Lewis,  No.  287,  the  claimant  alleged  that,  in 
March,  1S(J;I,  he  was  the  owner  of  'he  bark  Matilda  A.  Lewis,  on  wliieli 
vessel  was  laden  in  that  month  a  (piantity  of  I'owls  destined  for  llavana. 
That  the  ollicers  dI'  the  United  States  refused  to  permit  the  vessel  to 
lea\e  with  the  fowls,  and  took  jtossession  of  them.  That  subsecjuently 
the  consignee  of  the  ibwls  in  llavana  brought  suit  against  the  vessel  in 
the  Uniti'd  States  distiict  court  for  tiie  southern  distriot  of  New  York 
for  the  value  of  tiie  fowls,  and  recovered  judgment  for  $l,10t),  for 
which  amount,  with  the  adtlitional  sum  of  $1)00  costs  expeiuled  by  hiai, 
the  claimant  claimed  an  award. 

It  appeared  frotn  the  eviden<',e  that,  by  order  of  the  Secretary  of  the 
Treasury  of  10th  INIay,  18(5;5,  ollicers  «)f  the  custom  houses  of  the  Unite<i 
States  were  directed  to  refuse  clearances  for  the  ex[)ortation  of  "horses, 


AGENT  S    KKPORT. 


1G3 


nuilea,  ami  livestock,"'  siiul  to  cause  the  detention  of  all  animals  at- 
tempted to  be  so  exported.  Tliat  the  I'owis  in  «|uestion  had  been  shipped 
by  one  Glas  upon  the  vessel  for  Havana ;  that  the  enstoms  oHieers  in 
Xew  York  construed  the  order  of  the  Secretary  of  the  Treasury  as 
coverinj^  fowls,  refusecJ  to  grant  clearance  for  them,  and  ordered  them 
to  be  relanded.  The  fowls  were  relanded  and  delivered  to  the  shipper, 
and  the  charterer  of  the  vessel  having  i)rodueed  to  (Jlas  one  of  the  tri- 
plicate bills  of  lading,  CJlas  signed  a  memorandum  on  same,  annulling 
the  bill  of  lading.  Meantime  (Jlas  had  procured  from  the  agent  of  the 
consignees  at  New  York  an  advance  of  ^lOi),  on  one  of  the  triplicate 
bills  of  lading  for  the  fowls.  This  fact  was  not  disclosed  to  the  charterer 
when  the  bill  of  lading  was  cancelled  by  (Has.  The  consignee  subse- 
quently brought  suit  against  the  vessel  and  recovered  on  the  ground  of 
his  advan(!e  made  to  (ilas  upon  the  bill  of  lading,  and  that  the  surren- 
der of  the  fowls  by  the  charterer  to  Glas,  and  the  cancelling  of  the  bill 
of  lading  by  Glas  did  not  j)rejudice  his  rights,  and  that  the  order  pro- 
hibiting the  ex|)ortation  of  livestock  was  unlawful,  and  that  if  lawful 
it  was  not  intended  to  include  fowls.  (See  report  of  the  case  Desvernine 
V.  The  Bark  Matilda  A.  Lewis,  o  Ulatch ford's  C.  C.  K.,  520  to  ."n'J.)  lu 
a  like  case,  snbseciuently  brought  to  the  notice  of  the  Secretary  of  the 
Treasury,  and  involving  the  construction  of  the  order  of  l!)tli  May,  ISIJ.}, 
the  Secretary  held  that  the  order  did  not  cover  poultiy. 

On  the  part  of  the  Tnited  States  it  was  contended  that  llie  construc- 
tion phased  by  the  (Misloni-house  olli(;ers  ui)on  the  order  of  the  Secre- 
tary oi"  the  Treasury  was  t.'vidently  an  unjust  and  forecil  (U)nstru('lion  ; 
that  if  api>lication  had  been  made  at  once  to  the  Secretary  of  the 
Treasury,  the  di'cision  of  the  customs-ollicers  at  Nev.-  York  wotdd  have 
been  overruled,  and  that  the  United  States  were  not  resi)onsible  for  the 
error  ol"  Judgment  of  such  subordinate  ollicers  till  profX'r  resort  was 
had  to  some  resixjusilile  and  chief  olllcer  of  the  Government,  whoso 
decision  upon  the  (pu'stion  might  bind  the  Government.  Also,  that  if 
the  Unite<l  States  were  liable  for  the  wrongful  acts  of  tlu^  customs- 
oflicers,  the  claimant  was  in  no  i)ositiou  to  maintain  this  claim  ;  that 
tiui  charterer  of  his  vessel  had  wrongfully  allowed  the  fowls  to  be 
returned  to  Glas,  the  s!iip|)er,  on  his  caueellation  of  one  of  the  bills  of 
lading,  without  calling  in  the  others,  ui)on  one  of  which  the  advan(;e 
of  the  consignees  had  alrea<ly  been  made;  that  the  owner  of  the  vessel 
had  therefore  been  made  liable  solely  by  the  default  of  his  charterer, 
by  whose  acts  certainly  the  United  Stat(vs  CDiild  not  be  preju(li(!ed. 

The  commission  n\ade  an  award  in  favor  of  the  claiiuant  (ov  ><I,S|n  : 
Mr.  Commissioner  I'ra/.er  dissenting. 

Messrs.  A.  l).  Campbtill  ^S:  Co.,  (claimants  in  No.  2!)0,  claimed  from  the 
United  States  Aijr),.SSI,  beshles  interest,  the  alleged  value  of  a  cargo  of 
sugar  on  board  the  brig  .John  Welch,  which  brig  was  alleged  to  have 
been  captured  by  the  privateer  .Jell".  Davis,  and  carried  into  Charleston, 
S.  C,  where  her  cargo  was  sold,  but  the  proceeds  of  the  claimant's  por- 


'    *\ 


^.^ 


!    . 


164 


AMi;i{iCA\-i5KrnsM  claims  commission. 


ill 


tion  of  tlio  siinu'  were  hold  by  tlic  con  federate  jjovenmicnt,  lobe  refiindcd 
to  the  elaimiiiits.  The  memorial  further  alleged  that,  "  in  the  montli  ol 
February,  180"),  the  ITnited  States  troops  took  military  ])os.se.ssion  of 
Charleston,  S.  C,  and  seized  the  confederate  treasury  and  all  confed- 
erate property  therein,  and  shortly  afterwards  seized  and  took  posses- 
sion of  all  property,  whatsoever  or  wheresoever,  bolonj4in;?  to  or  in  the 
])ossession,  custody  or  control  of  the  said  Confederate  States,  includiiif; 
the  proceeds  of  the  car^io  above  referred  to."  Tlie  United  States  inter- 
])oseda  demurrer  to  the  memorial.  On  the  argument  of  the  demurrer, 
Her  ^Majesty's  counsel,  on  behalf  of  the  claimant,  urged  that  it  was  pos- 
sible for  the  clainiants,  under  the  alleg^ations  of  the  petition,  to  make 
out  a  case  of  property  taken  by  the  United  States,  "  by  shov.Mig  that  the 
proceeds  of  their  sugar  were  kept  separate  and  distinct  from  the  funds 
of  the  confederacy,  and  marked  or  noted  as  theirs,  and  thus  remain, 
ing  in  specie  werecai)tured."  That  in  su(;h  case  they  might  be  entitled 
to  recover.  On  this  giound  the  demurrer  \yas  overruled  by  the  (torn- 
mission.  Subsequentl.v  the  claimants  having  failed  to  make  any  prool" 
of  such  capture  of  their  property  in  specie,  and  appropriation  of  it  by 
the  United  States,  tlu'  claim  was  unanimously  disallowed. 

The  case  of  liarron,  Forbes  &  Co.,  No.  .')14.  In  this  case  the  claim- 
ants alleged  that  in  tiie  year  184.")  one  .Vndres  Castillero,  a  .Mexican 
citizen,  became  the  owner,  under  the  mining  laws  of  ^NFexico,  of  a  valu- 
able (piicksilver  mine  in  Calnornia,  then  a  part  of  the  ^Fexican  territory, 
since  known  as  the  New  Almaden  mine.  That  on  the  subse(iuent  ac- 
fpiisition  of  California  by  the  United  States  they  were  notilieil  of  Cas- 
tillero's  title.  Tliat  in  18Ki  and  1817  the  claimants  duly  succeeded  to 
the  title  of  Castillero.  That  by  the  treaty  of  Guadalupe- Hidalgo, 
between  the  United  States  and  .Mexico,  by  which  treat.v  Mexico  sur 
rendered  California  to  the  Tnited  States,  the  faith  of  the  United  States 
was  i)ledged  that  property  of  every  kind  belonging  to  ^Mexicans  should 
be  "  inviolably  respected."  That  in  ^farch,  18.")1,  the  Congress  of  the 
United  States  passed  a  law  which  in  effect  proceeded  on  the  assumi)- 
tion  that  all  unoccupied  land  in  California  was  public  property,  and  which 
allowed  proof  to  be  taken  by  allegedownersof  thetitles  before  commission 
ers  appointed  for  that  purpose,  with  the  right  of  ai)peal  to  the  United 
States  courts,  and  linally  tothe  Supreme  Court  of  the  United  States;  thus 
casting  upon  the  claimants  oner<ms  burdens  in  the  establishment  of 
their  lawful  title.  That  this  act  was,  in  etVect,  a  confiscation  in  favor  of 
the  United  States  of  all  landed  i)roperty  in  California,  subject  only  to 
its  being  averted  by  such  proofs;  and  was,  "  in  its  spirit  and  effect,  a 
violation  of  the  rights  of  pr()i)erty,  and  an  infraction  of  the  true  intent 
and  meaning  of  the  said  treaty."  That  the  claimants  filed  their  claim 
before  the  commissioners  in  California  on  the  30th  September,  ^S.'j^,  and 
that  those  commissioners,  on  the  Sth  January,  ]8."»(»,  afhrnied  the  claim 
of  the  clainjants  as  to  a  i)ortion  of  the  property,  but  rejected  it  as  to 
the  remainder,  on  the  ground  that  their  title  under  the  alleged  grant,  as 


AcJKNTs  wr.rnirr. 


k;.') 


to  the  pioiu'ity  ill  respect  ol'  wliicli  theirdaiin  wiis  rrJ('('tetl,\Vii.s  iiu'ii(>;it« 
and  imperfect  at  the  date  of  the  treaty  of  (;iia(laliipelIi(lal;,'o.  Tiiat 
tlie  United  States  appeah'd  from  the  (h'cision  of  the  (•oiniiiissioners  to  a 
tribunal,  composed  of  the  eiiciiit  and  district  Jiid^M's  of  tlie  I'nited 
States  sittinpf  in  California,  nnder  the  statute;  which  tribunal,  in  1857, 
issued  an  injunction  restraining?  the  claimants  from  further  worUinj*' the 
mine  until  the  further  order  of  the  court.  That  this  tribunal  linally,on 
thcl.Sth  .January,  ISOl,  rendered  a  decree  substantially  <*onlirmin,y:  tho 
dc(Msi()n  of  the  ori{>inal  commissioners,  estai)lishin;;'  the  title  of  the. 
claimants  to  a  part  of  thi^  property  and  rejecting  it  as  to  a  i»art.  That 
from  this  judi^uient  both  the  claimants  and  the  United  States  appealed 
to  the  Supreme  Court  of  the  United  States;  which  court,  in  the  year 
1803,  rendered  a  final  jud<;nient  reversin;;-  that  part  ol"  the  decree  whidi 
established  claimants'  title  to  ai)ortion  of  the  j)roperty,  and  dismissinj>" 
claimants' ai>peal  as  to  the  other  portion  of  the  decree,  and  remandin;^: 
the  cause  with  direction  to  dismiss  the  entire  petition.  The  report  o( 
the  case,  in  the  Supreme  Court,  is  found  in  the  second  vohune  of  lilack's 
Reports,  \r,\go  17,  under  the  title  of  "The  United  States  rn,  Castillero." 
The  memorial  disclaimed  all  imputatitui  of  intentional  wron<x  by  tho 
Suprenu'  Court  of  the  United  States,  but  alU'^ed  that  their  linal 
Judgment  was  erroneous;  and  further  allej^ed  that,  immediately  alter 
the  decision  of  the  Supreme  Court,  an  order  was  issued  by  tlu^  President 
of  the  United  States,  to  the  United  States  marshal  for  California,  di- 
recting;" that  the  memorialists  bo  ejected  trom  their  property,  and  that 
it  be  placed  in  the  possession  of  an  a^^cnt  of  the  United  States.  That, 
•' whili' thus  uuiler  pressure  and  duress,  and  threatened  with  eviction 
from  their  property,"  by  the  United  States,  the  claimants  ;;ave  a  (piit- 
daim  of  their  interest  in  the  entire  property  to  a  Pennsylvania  corpora- 
tion— tlu'  (Quicksilver  IMinin;;'  Comjjany — receiving;-  for  this  conveyance 
the  sum  of  81J'">0,(H)(>,  and  that  their  j;rantees  had  since  remained  in 
possession  ol"  the  mine,  "  undisturbed  by  anyclaimof  thii  United  Slites;" 
and  had  received,  and  still  continiu'd  to  enjoy,  a  nncnue  o['  aljout 
><I,(K)(), ()!>;)  per  annum  from  tin*  mine.  It  als;)  ane.i;i'il  various  acts  of 
uidairness  and  oppression  i)y  the  attiniieys,  aij'ents,  and  ollicers  of  the 
United  States  durin,n"  tlu!  iKMidency  of  the  litination  in  tiie  lowiu'  courts, 
before  the  final  appeal  to  the  Supreme  (Jourt.  Tin*  claimants  (;laimed 
an  award  for  about  >5l<),(i;)i»,o:>l),  besjdi's  interest.  A  dt^mur^er  was  in- 
terposed to  t!ie  m('ai)ria!,  on  ln'half  of  the  United  Stat.'S,  on  the  follow- 
in;;  grounds : 

1.  TIi((  Hiiid  nu'imtrial  Kots  firtli  no  icfs  cicumittcil  njiinst  the  propi'ity  of  tle'cl:iiiii- 
aiits  witliiii  tlic  tiniii  limited  by  flu-  treaty  fnr  wliicli  the  I'liileil  Slates  are  res|M>iisilile, 
or  on  account  111' wliich  reclamatiiiii  lit's  ill  t'aviir  ol"  the  ciainiants  against  the  Tnitt'd 
States. 

ii.  Tlio  a]h';;ations  in  the  nieniorial  of  tiie  :ille;;-ed  injuries  to  llii"  clainiant.'s'  ri^iits  by 
tlio  piisHam'  of  tia!  hiw  of  ltd  Mardi,  l"^.'tl.  as  aliejied  in  |iaraj;ia|»li  1.")  of  the  memorial  ; 
and  Ity  the  alleged  wron;;ful  and  oppressive  acts  of  tlu!  I'nitcil  States  ami  of  their 
oHiccrs  and  ay;cntH  in  their  oitpot^ition  to   llie  allowancti  of  tho  clainnuits  bofort)  the 


rM 


'K,' 


H 


1 


!5  I  I: 


IGC 


.\Mi:i«'I('AN-liJ;iTlSlI    CLAIMS    COAI MISSION. 


It  ■, 


MEI" 

"lie 


iti 
ill  I 


';! 


roiiiiiiissidiicis,  ,is  set  Inrlli  in  ii,iiii;;riiiili  "Jl'  of  tlir  inrmoiiiil  ;  liy  flii'  ii|)|»i';il  illid  otliiT 
iilicjicd  iiiijiist  anil  i)j»|in'S,s»vt!  proci-i'dinKs  net  forth  in  piuiifiniph  '-11,  iunl  by  Mk;  pro- 
cct'ilinf^s  ."ft  Ciiitli  in  pai'ii;;rii]ilis  'J'i,  'JII,  "Jl,  '2{t,  27,  'J^,  'i!>,  :>(•,  :U,  and  -V-i,  .show  all  ofsaiil 
transactionH  to  have  taken  plate  luil'orc  tin;  1:5th  day  .'f  April,  ISil  ;  and  thcichy  the 
.said  transactions  nrc  not.  tin;  subjects  of  icclaniation  bi  T.  ">  this  coinmission. 

:•.  The  decision  of  the  Snprt'nK!  Conit  of  thu  I'liitcfd  Staten  'ipon  the  claims  of  the 
nienioiiali.sts  in  the  year  r-'<i;>,  as  set  forth  in  para;;nvplis  :!:5,  M,  ;{.">,  and  :>»(,  of  tlie 
iiicniorial,  and  th(!  Mll<;j;ed  nets  of  the  Tresident  of  th(-  United  Sititcs  in  execution  (d° 
the  Jiid^'nient  of  saiil  court,  as  N<t  forth  in  itara;;raph  '.i7,  <lo  not  c-onsfitnte  'in  act  or 
acts  aj;;aiust  the  persons  or  property  of  subjects  of  ller  Ibitannic  Majesty  within  \\u' 
provisionsof  the  twelfth  article  of  the  treaty,  by  occasion  of  which  reehiniation  lies 
against  the  I'uiti'd  States. 

4.  The  only  acts  alle^^ed  in  the  memorial  as  occurring  within  the  tinu;  limited  by  the 
treaty  an^  the  Judfjnumt  of  tin;  Supreme  Court  of  the  I'uited  States  upon  a  cau.se  duly 
aiul  lawfully  jiendiug  before  tluun,  and  (he  juoceedings  in  due  course  of  law  for  the 
eidorc»Mueut  of  execMilion  upon  tius  said  JudgmtMit ;  the  nu-morial  distinctly  nejjativin^ 
any  alle;;ati(m  of  frauil  or  willful  injustice  in  the  said  court,  no  reclauuiti<)u  lies  o;i  be- 
Inilfof  the  (■laimauts  before  this  commission  by  reason  ot  su(di  Jud<;nuuit,  or  the  lawful 
pro(!<!edin;;s  in  execution  thereof.  This  (ioiniuissiou  has  no  Jurisdi(!tion  ti>  review  the 
Judji;ments  of  the  rej^ularly-coustituted  Jiulicial  tribunals  of  the  I'nited  States  or  of 
(iJreiit  Britain,  at  least  in  the  absence  of  iille<;ati»uis  of  fraud,  c(uruption,  or  willful  or 
intent  ioiuil  in  just  ice  or  injury. 

r>.  The  memorial  shows  (i»ara;;raph  WJ)  that  the  clainuiuts  or  their  predeiessms,  be- 
fore eviction  from  tholrsuld  juojierty  umler  the  said  Jud^juu-nt,  voluntarily  sold  and 
conveyed  to  another  jiarty,  to  wit,  the  Quicksilver  Mining  Company,  all  their  rifjlits  in 
and  to  the  premises  in  <|uestion  ;  and  that  their  said  <>;rantues  have  since  remained  in 
uiulisturbed  pos.se.ssiou  of  the  property  in  ([uestiou.  The  (daiinants,  therefore,  app<!ar 
to  have  never  been  disturbed  in  the  po.ssl^ssion  of  their  said  alleged  i)roperty  ;  and  no 
injury  is  shown  to  them  tu'  their  ri<;hts,  on  account  of  which  reclamUion  lies  against 
the  I'liitcd  States. 

(i.  Xo  reclamation  lies  on  behalf  of  the  claimants  against  the  Uuiteil  States  on  ac- 
c<uuit  <d"auy  allegi>il  infraction  by  the  United  States  of  tlie  provisions  of  the  treaty  of 
Ciuadalni)e.  Hidalgo,  the  i>rovisiouH  of  that  treaty  i»rotecting  the  rights  of  i»i<>perty 
only  of  Mexican.^,  citizens  of  tin;  republic  of  Mexico,  and  not  of  subjiicts  of  Her  Hritan- 
nic  Majesty. 

7.  The  allegatiims  in  the  memorial  do  not  show  any  infraction  by  tlie  United  States 
of  the  provisions  of  the  treaty  of  (inatlalupe  Iliilalgo. 

^.  Thi>  .-illegatious  in  the  memorial  show  m>  infraction  by  the  United  States  upon  any 
rights  of  the  claimants  ov  their  predecessors  under  tht^  law  of  nations. 

'.>.  The  allegatitms  in  the  nuuuorial  show  a  case  simply  of  adjudication  by  thu  regular 
Judicial  tiibunals  of  the  United  States  having  jurisdiction  of  the  subject-matter,  ami  of 
the  persons  of  the  parties,  coiHcrning  property  lying  within  the  limits  of  the  United 
Statts,  witluuit  fraud,  corruption,  oppression,  or  willful  injustice.  Such  adjudicatiiui  iw 
not  reviewable  by  this  commission,  and  the  parties  to  the  same  have  no  standing  for 
rcdanuititm  against  the  United  States. 

10.  Tliit  allegations  in  the  memorial  fail  to  show  the  clainuiuts  Itritish  subjects,  or 
entitled  to  a  standing  as  such  before  this  ciunmission. 

11.  'i'he  allegations  in  the  memiuial  fail  to  show  the  lueseut  claimants  to  have  sm- 
cecd^-d  to  any  alleged  tith-  ol  Andres  Castillero  in  or  to  the  property  in  ipu'stion,  or  to 
any  title  of  the  origimil  firm,  fo-called,  of  liarron,  Forbes  &  Co.,  to  the  said  property. 

Vi.  The  allegations  in  the  nn-morial  fail  to  show  any  title  in  Andres  Ciistillero,  the 
iilh'gc<I  source  of  title  in  the  clainuiuts  in  or  to  the  premises  in  rpu'stiou. 

It).  The  allegations  in  (hu  nu-morial  fail  to  impeach  the  Judgment  of  thu  Supreme 
Court  of  the  United  States  u))on  the  said  cast-  piuiding  before  them,  or  to  show  said 
Jndgnu'Ut  in  any  respect  erroneous. 


.\(i"',\TS    KKI'OKT. 


i<;7 


Oil  tlic  iir;4inii<'iit  it  \v;i,s  contriMUMl,  on  the  part  of  tlu^  United  States  : 

1.  That  all  tlic  alli'^'atioiis  in  the  nicinorial  toncliinjj  tlie  nnjiist  action 
of  tlH>  Tnited  Slates  by  its  statutes  ami  lej-al  proceed  in  ins  ])rior  to  the 
I.'ilh  April,  ISIil,  were  ontside  the  Jurisdiction  of  the  commission  as  es- 
tablished b.>  th(^  treaty;  and  if  tlie  United  States  «)r  their  authorized 
ii<;cnts  had  been  ^'nilty  of  any  Nvron<i:  in  these  respects,  siu;h  a  wron^ 
was  not  within  the  jurisdiction  of  the  commission. 

'2.  That  the  only  act  of  the  United  States  or  any  of  their  oHicers 
alh'jyed  in  the  niemorial  to  have  been  committed  within  the  treaty  time, 
is  the  adJiidi(ration  by  tlu^  Supreme  roiirt  of  a  case  re<;iilarly  pendiiif'' 
before  it  on  appeal  by  both  parties  (roin  an  inferior  tribunal.  That  this 
decision  is  in  express  terms  admitted  by  the  memorial  to  haves  been 
lioiK^stly  rendered  without  (corruption  or  partiiility.  Tiiat  such  a(!tion 
of  the  court  is  not  an  act  (iommitted  a;jainst  the  persons  or  i)rop(uty  of 
subjects  of  Her  IJritannic  Majesty,  within  the  meaninjjf  of  the  twelfth 
arti<;le  of  thc!  treaty. 

.'5.  That  the  claimants  wen*  never,  within  the  treaty  time,  disturbed 
ill  their  possession  of  the  property  whitdi  they  claim,  or  evicted  there- 
liom.  That  at  the  conclusion  of  the  litij^ation  they  voluntarily  ]»arted 
with  all  their  pretended  title  to  thepn>perty,  and  surrendered  its  posses- 
sion to  their  j^rantees,  who  have  since  remained  in  undistuilu'd  posses- 
sion. 

1.  That  thc  claimants  have  no  standing;  to  claim  for  any  allejfcd 
infraction  l»y  the  United  States  of  the  provisions  of  the  treaty 
of  (luadalupellidalfro.  That  that  treaty  provided  only  for  the  protec- 
tion of  the  rififhts  »)f  property  of  ^r«'.\i(!ans  ;  and  that  the  vindi<!ation  of 
the  rijfhts  of  i\[e.\ico  antl  her  citizens  umb-r  that  treaty  does  not  lie 
with  the  Dritish  {government,  and  is  not  a  subject  submitted  to  the  d(!- 
cision  of  this  commission. 

r>.  That  under  the  rules  of  international  law  no  lirouiid  ctf  reclama- 
tion by  (Jreat  liritain  aj^ainst  the  Unitetl  States,  (Ui  behalf  of  these  her 
allejjed  subje<!ts,  appears  from  the  memorial.  They  became  i)aities  lit- 
i^'ant  before  the  Suiueme  Court,  a  Judicial  tribunal  of  the  United  States, 
in  respect  of  lands  lyin<;' within  the  United  States,  and  in  a  casein 
which  the  court  had  unquestioned  Jurisdiction.  Their  ri^ijhts  wre,  as 
they  themselves  admit,  honestly  and  fairly,  but,  (as  they  allej^e,)  erro- 
neously adjudicated  there.  Without  awaitin;;-  eviction  from  the  prem- 
ises, they  voluntarily  parted  with  their  entire  claim  to  the  lands,  min- 
ing privilejjes,  and  all  enjoyments  and  protits  of  the  same  ;  that  if  their 
{jrantees  liad  been  evicted  from  possession,  the  claimants  corld  not  be 
the  partie.s  to  claim  redress,  haviii}?  voluntarily  surremlered  .ill  their 
ri«;hts;  but  their  }?rantees  had  not  been  evicted  ;  the  whole  estate  with 
its  vast  revenues  had  continued  to  be  enjoyed  by  the  parties  to  whose 
enjoyment  the  claimants  voluntarily  ce«led  it. 

On  the  part  of  thc  claimants  it  was  insisted  by  Her  ^fajesty's  counsel 
that  the  annulling  of  the   title  of  the  claimants  by  the  decree  of  thc 


tm 


m1 


'1 


u. 


ir;,s 


AMKKICAN-nUITISH    CLAIMS    COMMISSION. 


Siiprciiic  Court  in  ISO.},  and  tlic  iliioction  by  tlio  I'lvsident  of  tin*  United 
States  to  the  Knited  States  inaislial  in  Caliloinia  to  expel  the  (tlainiants 
troui  Iheir  pio])erty,  constituted  acts  aj;ainst  the  ja-operty  of  IJritish  sid) 
Je<'ls,  Ininf^in;;'  them  within  tin;  Jmisdicftion  of  the  conmiission.  That 
th(^  conveyance  by  (lie  claimants  to  tln-ir  {grantees  was  a  conveyance 
nnder  dnre.ss  ol'  theses  acts,  and  did  not  dischai};(!  the  liability  of  the 
United  States,  except  so  far  as  the  anionnt  received  by  the  claimants 
ii'om  their  j«rantees  as  pnrchase money  nu^iht.  j^o  to  reduce  the  amount 
of  their  loss.  That  it  was  within  the  Jurisdiction  of  the  comndssion  to 
review  the  JudiiUK'nt  of  the  Supr<'nu'  Court,  antl  if  found  erroneous  to 
award  compensation  to  the  claimants  lor  their  losses  by  occasion  of  ii. 
Jh'r  ^lajesty's  counsel  cit«'d  Ctdro  hcicrhn  fiitcyndchnial.,  vol.  1,  v.  0,  §§ 
LMt(J,  liOL',  7!»7,  pa<,re  .'I'.H  ;  Dr  Friicr  Droit  ik  Xaiiirc  ct  dcx  (iciis,  vol.  L',  \k 
U;  liurlatuaqui  Droit  dc Mature  ct  (hn  (Ii'hh^\u\.  — ,  p.  o,  c.  1 ;  IMiillimoic, 
vol.  1,  §  KiH;  liutherforth,  v(tl.  L',  book  L',  c.  !>,  v^§  IL',  l.*5,  1!);  .Manning's 
Law  of  Nations,  .'{S;{  ;  Lawrence's  Wheaton,  (JT.J,  071,  (»70  to  OSi' ;  llal 
leek's  hit.  Law,  §§  !."»,  10  ;  Htoi-y's  Conllict  of  L  iws,  §§  ."JDl,  r»:)2. 
The  commission  nnanimously  disallowed  the  claim. 

(icorj-e  JI.  and  .James  \V.  15.  Money,  No.  '.V2\.  The  memorial  in  this 
case  alleji'ed,  in  effect,  that  the  I'laimaids  wert^  tln^  owners  of  certain 
shares  in  the  I'atik  of  Louisiana,  at  New  (Orleans,  which  shares  paid 
larf>e  dividends  .p  to  the  year  ISlil  ;  that  at  the  close  of  that  yeai'. 
"in  j'onscipience  <jf  the  war  in  America  between  the  Northern  and 
Southern  States,  and  of  the  occupation  of  New  Orleans  and  of  the 
bank  by  (leneral  JJutlei',  the  bank  ceased  to  i)ay  any  dividend  <»r  bonus," 
and  the  claimants  have  never  since  been  paid  any  dividends: 
that  at  the  time,  of  the  cessation  of  the  dividends  the  shares  were 
worth  $.'51,L'(l(),  but  that  since  that  date  they  had  been  substantial!- 
valueless.  The  claimants  claimed  >';).">,7l!0,  besides  interest.  On  demur 
rer  by  the  United  Stiites,  the  claim  was  unanimously  disallowed. 

William  IJ.  Ilodi^es,  No.  .').'')l.  This  claimant,  by  his  memorial,  stated 
seven  «listinct  claims  a,uninst  the  United  States,  upon  which  he  claimed 
iiwards  to  the  amount  of  •'::«1, 17  1,1.">,  besides  interest. 

L  For  200  bales  of  cotton  alle;;'ed  to  have  been  owmumI  by  the 
clainmnt  in  .Inly,  iSOt,  at  Uort  Adams,  Mississipju.  This  cotton 
was  allej;ed  to  have  been  seized  l)y  the  United  States  military 
IbrccH  at  Uort  A(hims.  in  Au,u,'ust,  LSOl,  and  178  bales  of  it  sent 
to  New  Orleans;  tln^  remainin<;'  L'li  bales  h(»  allej;ed  were  carried 
oil'  by  the  teamsters  who  lleil  fearin;;'  that  their  teams,  iis  well  as  the 
cotton,  would  be  seized  by  the  United  States  otlicers.  The  cotton 
brou.uht  to  New  Oilcans  was,  on  its  arrival,  turned  over  with  other  cot- 
ton by  (leneral  Caid)y  to  Ii.  F.  l-'landers,  a  Treasury  ayent  of  the  United 
States.  The  clainnint  brou<>ht  suit  ajjainst  Flanders  in  a  LDuisianii 
court  to  recover  the  cotton,  which  suit  was  afterwards  dis(!ontinued 
with  other  like  suits  brought  by  other  clainuuits  of  cotton  against 


AdKNI'S    IMM'OUT 


u;i) 


FliiiuU'is,  oil  a  slipuliitioi!  lor  Um!  tlclivt'iv  of  the  cotton  to  tin-  respect- 
ive  claimants,  acconlin;;'  to  their  sliares,  as  stipulated  between  them- 
selvos,  by  wliicli  stijniiation  IIo(Ij,m's  was  j'lititled  to  IJU  bales.  Ho 
clainiod  <laiiia;;es  for  the-  TS  bales  .vhich  he  fail"(l  to  receive,  anil  for 
ilepreciation  ol"  price  on  the  122  bales  re(!eiveil  by  him,  and  lor  le<j;al  ex- 
[tenses  incurred,  to  the  amount  of  >(1()(»,S,"»U,  besides  inti-rcst. 

2.  The  se<'ond  claim  was  lor  *' hospital  taxes"  alle;,'ed  to  have  Iteen 
paid  by  tlu^  claimant  to  the  military  authorities  at  New  Orleans  nnder  an 
order  of  MaJorCrcneral  iJaiiks,  then  in  command  theic,  retpiiriiij;- that 
all  cotton  cominj;'  to  New  Orleans  shonid  pay  a  tax  of  •*."»  per  bale; 
siifiar,  ^l  per  hoj;shead,  i\:i*.,  tS:i*.  The  claimant  alle,y,iMl  that  he  paid 
said  taxes  nmlcr  protest  to  tin'  amount  of  >!20,1>L'l,  lor  which  amount, 
with  interest,  he  claimed  daina;;es. 

3.  Thc!  third  claim  was  for  1,<»IK)  bales  of  cotton  allej;'«'d  to  have  been 
partly  destroyed  and  partly  carried  oil"  by  the  military  forces  of  the 
United  States,  ni'ar  Alexandria,  La.,  in  .March,  bSlii,  for  which  he 
claimed  8i2."),(M(),  besides  interest. 

4.  Thc  fourth  claim  was  for  a  quantity  of  cotton  near  IVarl  Jiiver, 
Mississippi,  which  he  alle<;ed  was,  "  by  the  ne^letit  and  ineHiciency  of  the 
naval  an<l  military  ollicers  in  command  of  the  district,  entirely  and 
totally  lost  to  your  memorialist,*'  and  for  which  he  claimed  i^22i,VM), 
besides  interest. 

.">.  The  lilth  claim  was  for  a  (luantity  of  sujiar  and  molasses,  alleged 
to  have  been  stored  by  the  memorialist  in  .March,  1804,  upon  OldlJiver, 
ill  Point  Coupee,  Louisiana.  The  claimant  allej-cd  that  he  .sent  a  ves.sel 
ill  ]March,  I.SIII,  to  remove  tiiis  su<;ar  and  molasses,  but  that  the  vessel 
was  prevented  by  thc  ITnitcd  States  j^un-boat  licet  from  landiii*;'  and 
takiiiii'  on  board  the  su^iar  and  molasses,  and  that  in  ciMisequence  tlio 
sufjar  and  molasses  '•  were  entirely  lost  to  your  memorialist."'  For  this 
lie  claimed  8;5r», 1 7.1,  besides  interest. 

0.  The  sixth  claim  was  for  a  quantity  of  siij^ar,  alle/^cd  to  have  been 
l»nrchased  in  March,  1S<»!,  by  the  claimant,  from  one  Thorne,  a  resident 
of  Saint  ^lartin's  l»ari>*h,  La.,  where  tin;  su^iH'  was  situated.  The 
claimant  alle<fcd  that  In^  hired  a  United  States  transport  from  the 
quartermaster  of  the  United  States  Army,  to  w  lioin  he  paid  the  sum  of 
*3,()0(),  to  brin}>'  out  the  suj-ar  from  the  [dantation,  where  it  was  stored, 
to  IJrashear  City,  La.,  to  be  thence  transported  to  New  Orleans.  That 
<St  hofjsheads  of  the.'JOO  purchased  weri^  brou{>lit  out  by  said  transport  to 
Drashear  (!ity,  where  it  was  .seized  by  the  L'nited  States  authorities, 
and  libelled  in  thc  L'^nited  States  district  court,  but  .said  libel  was  dis- 
missed and  the  sujjar  surrendered.  The  United  States  authorities, 
however,  prohibited  thc  transport  which  the  claimant  Inul  hired  from 
returiung  for  the.  remaimler  of  thc  su<jfar;  and,  in  consequence  of  such 
refusal,  he  allej^ed  that  the  siij>ar  was  shortly  afterwards  destroyed  by 
confederate  scouts.  For  his  los.ses  in  this  regard,  he  claimed  i?81,.1iGr), 
besides  interest. 


-w^ 


170 


AMKIMCAN-MKITISII    CLAIMS    COMMISSHiN. 


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iff 


7.  The  sfvciitli  rlairn  \v:is  lor  a  ljii<;(^  <|iiimti(.v  of  cotton  allryci'  lo 
liavr  lu'cii  |mr«lias»'(l  by  tiMXflaiiiiaiit  in  tin' Slates  of  lionisiana  and 
IMiMsissippi,  1,000  btlos  of  \vlii«'li  he  alli'K»'<l  to  liavci  luu-n  (IcstroytMl  by 
troops  of  t\w  Tnitcd  States,  and  tlic  remainder  to  inivc  been  lost  iind 
dfstro.vcd  tliron;;ii  \\\v  nt'jjllfjjj'nct'  an<l  dcfiiidt  of  tin'  Fnitcd  States 
anthorities.  ITinler  this  claim  lie  claimed  an  award  for  )i'riSO,0(H),  be 
sides  interest. 

Dnrinj;  all  the  tiaiisaetions  in  qnestion  the  (claimant  was  domiciled 
in  New  Orleans. 

The  (pu'stions  arisinj;  in  the  case  were,  to  a  lar<;<^  extent,  (piestions 
of  filet,  the  reciipilnliUion  of  which  In-re  would  be  iinprolitable.  In 
re;;ar«l  to  most  of  the  property  set  forth  in  claims  1,  ;{,  4,  ."»,  (i,  and  7, 
it  wiis  contended  by  the  United  Stiites  that  the  claimant's  title  was  in 
valid,  as  obtained  by  uidawful  purchases  from  enemies  of  the  United 
States  of  property  within  the  enemy's  country,  in  violation  of  the  non- 
intercourse  statutes  of  the  United  States,  and  of  tlni  fjfcneral  laws  of 
war.  The  permits  under  which  most  of  this  property  was  alle.yed  to 
have  been  pnrchasetl  were  also  claimed  by  the  United  States  to  have 
been  irrejjfular,  collusive,  and  frau<lulent,  issued  in  violation  of  law,  and 
jjivinjjf  to  the  claimant  no  ri};ht  to  trade  within  the  enemy's  country. 

In  rej^jard  to  the  (;laim  for  payment  of  alleged  il!e;^al  taxes,  beinji'  the 
claimant's  second  clainj,  it  was  conteuiled  on  the  part  of  the  U'nited 
States  that  the  tax  was  a  lawful  one,  imposed  by  the  commandin<>-  olli- 
cer  at  New  Orleans,  while  that  laty  was  {•■()verned  solely  by  martial  law. 
as  a  condition  lor  the  carryiuj;  on  of  trade  in  that  city  ;  and  its  i»rocceds 
properly  applied  to  the  relief  of  the  poor  of  the  city,  with  whoso  care 
the  military  authorities  w<'re  of  necessity  cluuf^ed.  That  it  was  a  tax 
imposed  upon  all  persons  tradin-j^  in  the  city  without  dis(!rimimition,  and 
voluntarily  ]>aid  by  the  <*laimant  in  (tommon  with  all  other  persons  in  like 
situation  in  Isew  Orleans.  Various  other  questions  in  rej»ar<l  to  all  the 
claims  were  r  lised  and  discussed  by  the  respiuitive  counsel,  but  thoy 
were  nu»inl>,  such  as  relate  oidy  to  tin;  special  circumstances  of  the  case 
aud  the  «juestions  of  fact  involved  in  the  evidence  in  relation  to  them. 

The  commission  made  an  award  in  favor  of  the  claimant  for  $34,150, 
Mr.  Commissioner  Frazer  dissenting.  I  am  advised  that  this  award 
was  made  entirely  in  respect  of  the  claimant's  lirst  claim  above  recited, 
and  of  the  amount  paid  by  the  claimant  to  the  United  States  (pnirter- 
master  for  the  use  of  the  transport,  as  set  forth  in  the  sixth  claim. 

In  the  case  of  I'etcr  Maxwell,  No.  385,  the  memorial  alleged  that  the 
claimant,  during  the  entire  war,  was  a  resident  of  Liverpool.  That  in 
the  year  1802  proceedings  were  instituted  in  the  United  States  court 
for  the  district  of  Kansas  for  the  confiscation  of  four  lots  of  land 
situated  in  the  city  of  Leavenworth,  Kans.,  a  State  not  in  rebellion,  on 
the  alleged  ground  that  the  clainumt  was  a  rebel  in  arms  against  the 
United  States.    The  only  notice  of  the  proceetlings  to  the  defendant 


AfiKXTS    UKPOUT. 


171 


was  ii  coiLstnictivi'  iiotict!  by  iMiblicatioii  |misiiiint  to  tlii!  stiitiitc.  No 
iippoariincc  l)i>iii;>'  had  by  tlio  now  claiiiiaiit,  a  (Irci'cr  of  <'oiilisratioii  oj' 
two  of  tho  lotM  passed  by  (Icl'aidt.  As  to  the  oilier  two,  tlu'  liltcl  was 
dismisscMl. 

The  proofs  before  the  eoinmissioii  clearly  showed  that  the  alIe;4ations 
in  the  libel  as  to  the  <;lainiaiit  beiii;,'  eii^a;ced  iti  the  rebi'lliini  a;r:iinHt 
tlie  United  Stat«'s  were  mil'oaiMled. 

The  coiiiinissioii  made  aiMiward  in  favor  oi'  the  elaiinant   for  !i!«l,7S2. 

llailey  &  Leethaui,  clainiants,  No.  .•SO.  The  elainiants  wi're  the 
owners  of  theliritish  steamship  Labiian,  which,  on  theotli  wf  November, 
ISOl*,  wa.s  in  the  port  of  New  York  laden  with  a  carjjo  of  nuMchandise 
destined  f.u  jiatamoras.  On  tliat  day  her  master  ju'esented  the  mani- 
fest to  the  proper  olVicerof  tin'  cnstom-honse  at  New  York  for  clearance, 
but  snch  (ileaiance  was  rcfnsj'd,  and  the  refnsal  continued  np  to  llu^  l.Wli 
oC  December,  lS(»i>,  on  which  day  it  was  y;ianted.  Tlu^  njt-morial  alle;i,fed 
that  this  detention  was  by  ri-ason  of  instru(!tions  receivi'd  by  the  cus- 
tom-honso  oHicers  from  the  proper  authorities  of  the  I'nited  States  to 
detain  the  Labnan,  in  conimon  with  other  vessels  of  {ijreat  spe«<l  destined 
for  ports  in  the  (Inlf  of  ^Mexico,  to  prevent  the  transmission  of  informa- 
tion relative  to  the  departnn'  or  ]»roi)osed  departure  oi'  a  military 
expedition  llttcd  out  by  the  authority  of  the  said  United  States.  Tho 
ineniorial  claimed  dama.ijes  for  the  <lelention  A')S,<K)l>,  beln;;  at  the  rate- 
of  $1,(KK)  per  day,  the  nuMuorial  alle^in;;  that  o!i  a  former  soizuro  and 
detention  of  the  same  vessel,  trom  February  to  May,  ISOi*,  when  libelled 
as  prize,  this  rate  of  <!omi)ensation  tor  the  iletention  had  been  awarded 
to  the  owners  by  the  districtt  court  of  the  I'nited  States. 

On  the  part  of  the  United  States  it  was  contended  Wnd  the  detention 
of  the  Labnan,  under  the  (arcnmstances  alleged  in  the  memorial,  was 
within  the  legitimate  and  recognized  powers  of  tin'  United  States; 
that  it  was  no  infringement  upon  the  rules  of  international  law  or 
upon  any  treaty  stii)ulations  between  the  United  States  and  (Ireat 
IJritain,  and  that  it  gave  no  right  of  reclamation  in  favor  of  the 
clainmnts  against  the  United  States;  that  the  right  of  self-iuotec- 
tion,  by  temporarily  refusing  <*learanee  to  vessels  through  which  in- 
fornmtion  of  great  imiuirtance  in  regard  to  military  movemei'ts  is  likely 
to  reach  the  enemy,  must  be  regarded  as  of  necessity  i)ermissible  to  a 
government  engaged  in  war;  that  at  the  time  of  this  detention  im- 
portant military  movements  then  in  progress  in  connection  witii  the 
occupation  of  New  Orleans  by  the  Federal  forces,  including  the  di.s' 
patch  of  General  Banks,  with  large  re-enforcements,  to  supersede  General 
Hutler  in  the  command  there,  were  in  progress,  and  made  it  of  the  nti.iost 
importance  that  these  movements  shoidd  be  carefully  kept  secret  from 
the  rebels;  that  the  detention  of  the  Labuan  was  not  by  any  discrimi- 
nation against  her  as  a  IJritish  vessel,  or  against  British  vessels  as  such. 
All  vessels  capable  of  such  a  rate  of  speed  as  to  make  their  departure 


7-> 


172 


A.Mi:Ki('A\-IUtlTlS!l    CLAIMS    COMMISSION. 


Ji. 


fii 


III 


dan ;;•«,' roll;-  in  this  ie<;anl  were  detained  alike.  That  no  citini  had  evci 
been  made  by  the  IJritish  <i:()V«'iiinHMit,  tiiron^^h  the  nsnal  </i)h)e,.(iic 
'channels,  npon  the  I'nited  States  Ibr  e(>nii)ensati on  ;  and  that  il  eonld  not 
be  belie\«'d  that  sueh  elaini  wonld  not  have  been  made  if  Her  M;ijest.v"s 
•govern nuMifc  ha<l  considered  such  a  (;i;'ini  valid.  The  counsel  Ibr  the 
United  States  <-ited,  in  this  ct)nnectio»i,  the  letter  of  .Mr.  Stuart,  Ilei 
.Ma,iest.v's  minister  at  ^Vashin;•ton,  to  Mr.  Seward,  of  I.st  August,  bSdJ, 
(U.  S,  Dij*.  C'or.,  b*^(iL',  1S(;;>,  part  1,  |>.  -7.'!,)  ui)on  a  souiewhat  aiialo<j:iM!> 
question,  in  which  Mr.  Sluar*  says: 

I  luivc  lii'fii  iiisd  iiclcfl  t.»  stiitf  to  vim   that   IltT  Maji'st  >'■■<  ^iovcrnmciif,  after  (••iii 
siih-iiiifi  tlifsi'  «liNiiat(li<'s,  in   cniinrctinii   with  flic  law-dliiiTi-.'i  ol'  thi'  ('r(i\Mi,  art-  <it 
<)|>iiii<)ii  thai   il    is  ((inipftiiit   fur  the  liiittd  Ktiiti-s,  as  a  bflli;;cii'iit  powt  r.  ti>  i»ri>tt  r 
ithi'K"  \\ilhin  its  nwn  pDits  ami  li'iiitui\\  liy  rcl'tisiii;;  rh-araiiccH  tn  vessels  latlen   will 
<M'Mlialii\li>l  til'  war  CI' iithfl' speiilitMi  al'tieh'S,  as  Well  as  to  \cssels   x'llieh  are   lielieviil 
to  i)e  lioiiiiil  Ui  eoiiffilerate  iiorts.     .\iiil  that  so  loll;;  as  sinli  preeaiit  ions  ale  ailniileil 
e<(ii;illy  anil   inililleieiitly  in  all  i  asivs,  withont  lel'ermee  lo  the  nationality  or  origin  i' 
anv  paitienlar  \i'.-^cl  m  ^oods.  they  do  ;iot  all'onl  any  just  ;.jronini  of  cciniidainl. 

Tln'  case  «)f  ihe  detention  of  the  Lalinan,  it  was  contended  on  tin 
part  of  the  United  States,  was  ooverned  by  tin;  same  principles  ami 
Justified  by  the  same  rules  as  the  eases  rei'erretl  to  by  .Mr,  Stuart.  Tin 
eottnsid  referred  to  the  decision  of  the  commission  upon  the  Americiii 
i'laims  aoainst  (Ireat  Uiitain,  oi,,\vin,u  out  of  the  proliibition  of  tiie  e\ 
])ortatioii  (»f  saltpetre  ;iV  Calcutta,  (American  claims,  \os.  11,  IL',  1(1,  is, 
hereinlietore  r(>portcd,  and  in  which  siicli  prohiltition  was  held  by  tin 
eominission  not  to  involve  a  xiolatioii  either  of  intiMuatiomd  law  oi 
of  treaty  stipulation  :  and  uroed  that  the  principles  which  would  sii> 
tiiin  the  validity  cd'  such  prohibition  must  also  include  mi.  Ii  a  case  a- 
the  detentiiMi  of  the  l.abiian. 

I'he  counsel  tor  the  claimant  inaialaincd  that  the  detentiiui  of  tii< 
l.alman  was  in  eHect  a  depiivatioii  td'  the  owners  of  the  use  of  tlteii 
properly  Ibr  the  time  of  the  tleU'iition  lor  tin  i>ahlie  benefit  ;  thai  ii 
was  in  elle*  I  a  lakitio-of  piivati-  [uoperty  fur  pidilic,  use,  always  Justilied 
by  the  m'«;e.ssity  of  the  Slate,  but  likewise  always  invohino"  the  ubli^.; 
tion  of  coiupeiisatioii.  Me  (ited  .'!d  IMiillimitre,  11!,  and  Daim's  Wlu  i 
Ion,  l."iL',  n. 

Tiu'  commission  unanimously  made  an  awaid  in  la\  or  of  Ihe  claimam 
Ibr  A;$7,;«L'. 

!n  tile  eas**  c!  t'athaiiiie  .1.  .Itdinsoii,  e\eeutii.\,  .No.  Ill),  the  menin 
lial  alleoeil  that  Ihe  ci'.t'inant's  testator  was  the  sole  '•eoist^'red  owiH'r«t! 
ilie  j'liilish  s<diooner  James  l)oiiolas,  widch  \esscl,  while  on  a  V(iya;ic 
from  Cuba  to  New  York,  met  \vilh  tijsasler  uhicli  ied  to  her  beiii^ 
abandoned  by  the  master  and  c;cw:  that  she  was  subscipienlly  fallen 
in  with  by  a  Uniled  States  \  cssci  of  war,  which  look  her  into  the  |»(ir! 
of  lieaufoit,  North  Carolina,  Aviiere  she  was  appropriated  to  the  use  oi 
the  Unite«l  States  (lovennnent;  that  on  application  to  that  (loverii 
nient  for  her  resl»)ration,  the  Secretary  of  the  Navy  ^ave  directions  that 


ACKMS    K'KI'OUT. 


17.'J 


the  vessel  he  sill  reiiilered  to  lier  owner  on  liis  renouiieiii,!;  iill  eliiiins  lor 
tlie  use  of  the  vessel  l»y  the  I'liited  Stiites;  that,  not \vithstiin<lin;i'  these 
ludcis,  the  vessel  had  never  been  restored  to  her  owner,  hnt  was  still 
ill  the  port  of  l>eaul'ort  under  the  eontrol  of  the  oflu'ials  of  the  United 
States.     The  elainnint  (ihiinied  daniajiTs  ><7,flOO.  besides  interest. 

Tiie  |»rooi's  showed  that,  after  the  vessel  was  bronjiht  into  port,  and 
hcf.ne  any  ehr'ii  was  interposed  on  Itehalf  of  her  owner,  some  use  ha<i 
hoen  made  jf  tlM*  Vi'ssel  by  tin*  Navy  J)epartment  ;  that  the  elaim  of 
the  owner  was  iiiterposed  thron;;ii  the  Ibitish  le^^ation,  and  tiiat  tlu; 
.'iiited  .Stat«'s(Joverninent  at  onee  otl'ered  to  surrender  her  on  {)ayment 
(tf  a  I'eav  /uable  salvajic  to  the  ollieers  and  cicw  of  the  vessel  wiiieh 
liroiinlit  her  in.  Some  oi)jeetion  bein;;  nnule  '  »  the  payment  of  the  sal- 
va<;e  asked,  the  rnited  States  (iovernment  dili'eted  liei- surr«'n(h'r  with- 
iiiit  salva;;e,  on  the  claimant's  waiving;"  claim  Ibr  compensation  lor  the 
use  that  had  been  made  of  her  while  in  poit.  No  ol)Jeetion  was  imule 
to  (his  condition,  lud  in>  further  claim  was  ever  advanced  by  any  person 
ioc  the  vessel.  SIk-  remained  lyin^  at  IJcaufoit  waiting;  i'e(piisition  of 
her  ow  ner,  anil  iiotlnnj;  fiirtlu'r  was  ever  heard  of  the  matter  until  the 
!iiiii.Lt' of  the  memorial  liefore  the  commission. 

The  commissicM'  (Mr.  Commissioner  (iurne;v  dissentiuff)  made  an 
award  in  the  Ibllowintj  words: 

'At-  till  III;  il  (lues  iiti)  apprnr  that  tlir  I'nitcd  States  a|(|tri>]n  ialfil  I  lie  vchsi-I,  ami  w  c 
N  u'liil  it  as  ,\<'t  liriiij;  tho  I'laiiimnt's  proin'ity.     'I'lic  claiiii  is,  tiicicl'.irc.  disalinwi'il. 

All  which  is  respe<'tfully  submitteil. 


IJOIl:  S.  IIAI.K, 

Atfi  lit  of  llir  Ciiilcil  Sill  Its,  dv. 


\VASiii.NtJT<»N,  Xni-ciubir  liOf  187.'». 


claimaii! 


l-fl'- 


!    M 


1  i 


m 


A  P  1'  V]  N  i)  ]  X 


.fi,j 


nui 


"i 


A.- 
IJ.- 
C- 
1).- 
K.- 

r. 

Ci. 

II. 
I. 

K. 
L. 
M. 

N. 
0. 


C  O  N  T  E  NTS. 

-Aitiilesof  treaty,  XII  to  WII 17r> 

-Copy  rules  of  ctmunissioii 177 

-Seliedulo  of  claims l."^(l 

-riiial  award -J-JK 

-Mr. Coiuniissioiier  Frazer's  opinion  in  Calcutta  Haltpetro  rasea 'S.W 

"                 "                    "              "           Henderson's  ease,  No.  41 'J:!J 

"                 ''                    "              "           cotton  cases,  ISO.  22'>,  «.V  c 'S17 

"                ■'                   "              "           llanna's  case,  No.  2 ',>:«» 

'•  •'  "  "  Sliernian'scase,No.  3.7.);  and  lirain's  ease. 

No.  447 *J4l) 

"                "                   «              "           llahniins's  case.  No.  7 '2AI 

•'                ■'                   "              "           on  question  of  ai>peal  in  prize  eases 24:? 

"                "                   «              "           the  IJio  Grande  cases 24(> 

"                ''                   "              "           the  Circassian 2u(> 

"            •       "              "           the  "  warned-otV  cases " 'J.'.J 


A. 

Articles  of  the  treaty  relathifj  to  the  eontinlnsion. 

Abticle  Xll- 

Tlie  lii;;l»  coiitriictiii';  jmitit's  n'jfrcc:  tliat  iill  claims  on  llio  i);irt  of 
coipoiatioii.s,  coinpaiiics,  or  ;.iiviit('  individuals  ((Miizcn.s  of  the  United 
St.'tes)  upon  tlio  jj^ovornnuMit  of  Ilcr  IJiitiinnic.  .Majesty,  arisiiijj  out  of 
act;  eoiuuiitted  aj;ainst  the  person  or  jiroperty  of  eilizensof  the  United 
States  duriuj^  the  period  between  the  lliirtei'Uth  of  April, eijihteen  hun 
dr»'d  and  sisty-one,  and  the  ninth  of  April,  eij;hteen  hundred  and  sixty 
live,  inclusive,  not  hein;;  claims  orowiny-  out  of  the  acts  of  the  v<'ssi'ls 
rcteiii'd  to  in  Article  I  of  this  treaty,  and  all  claims,  with  the  like  e\- 
tcpiion  on  the  part  of  corporations,  compani«'s,  or  privat.^  individ- 
uals, (sub/ects  of  Her  IMitaunie  Majesty.)  upon  the  (iovernment  of 
the  United  States,  arisin;^  out  of  acts  committed  a.^ainst  the  personsor 
property  of  sui>jeets  of  Her  IJritannic  Maiesly  diiriuir  the  sanu'  period, 
wliieli  nu»y  haxc  been  pn'scnted  to  either  ijoveriniient  lor  its  int<rposi- 
tinn  uith  the  tMher,  and  which  yet  reiiuiin  unsettled,  as  well  as  any 
other  siU'li  claims  which  may  be  presented  within  the  tinu' sp»'cilie«l  in 
Article  WV  o\'  this  tr«'aty,  shall  be  referred  to  three  c(Mhmissioneis,  to 
•  m'  a|»pointed  in  the  followinjjj  manner,  that  is  to  say  :  One  c(uninissi<uu'r 
>li.dl  be  iiauM'd  by  the  President  of  the  United  Stales,  oiu'  by  Her  Ibi 
ianni(  Majesty,  an«l  a  thir«l  by  thi'  IMesident  of  the  United  State.s  and 
Her  litannic  Majesty  conjointly  ;  and  in  <-ase  the  third  comnMssi(MMM- 
shal.  not  have  been  so  named  within  a  period  of  three  iiMiiitliH  from  the 
dito  of  the  e.\eliango  ol  the  ratili(Mtioi!.s  of  tl^i^  treats,  tiieii  tlie  third 


111  >i 


17(1 


AMKHICAN-IU.'ITISII    CLAIMS    COMMISSION, 


comuiissioiicr  shiill  I»c  iiiiiiicd  by  tli(^  r('i)r(vscntativo  at  N\'iisliiii;jt()ii  oi 
His  Majesty  the  Iviny;  of  Spain.  In  case  of  tiic  dcatli,  absonct',  or  in- 
<'ai>a<-ity  of  any  coininissioncr,  or  iu  the  event  of  iinv  ••oniinissiontT 
oniittin;^'  or  ccasinj^"  to  act,  tb<'  vacancy  shall  b..  tilled  in  the  nianncr 
hereiidu'fore  provided  for  niakin;;' tlie  ori^iiiid  apj.ointnienf  ;  the  period 
of  three  months  in  (!as(^  of  such  substitution  beiii;;'  caleidated  iVoiii  the 
date  ot  the  hap]>eninji'  of  the  vat'aiicy. 

'J'he  coinniissioneis  so  nanietl  shall  meet  at  Washinfiton  at  the  earliest 
convenient  period  alter  they  have  been  respiuitively  nanu'd  ;  and  shall, 
bi'lbre  pi'oceedinjr  to  any  busiiu'ss,  make  and  snl)scril»e  a  solemn  <leclara- 
lion  that  they  will  impartially  and  ciuefully  examine  and  decide,  to  the 
best  of  their  .jnd<;'ment,  and  according;  to  Justice  ami  ecpiity,  all  sucii 
claims  as  shall  be  laid  before  them  on  the  i)art  of  the  yovernnuMits  <»!' 
the  Tnited  Stales  and  of  Ijei'  III  itannicMajcsty,  jcsjiecitively  ;  and  sucli 
declaration  shall  be  entered  on  the  record  of  their  p!'oc.eedin<is. 


!^ 


Pi 


§ 


A  unci. i;  XIII. 

The  commissionois  shall  then  forthwith  i>r()ceed  to  the  invest i;jat ion 
of  the  claims  which  shall  be  pi'csented  to  them.  They  shall  investijiale 
and  decide  such  claims  in  such  order  and  in  such  manner  as  they  ma\ 
think  i)r<)]»er,  but  upon  such  <'videiui'  or  inlormation  only  as  shall  !>e 
furnished  h\  or  on  behalf  of  the  respective  governments.  Tluy  shall 
b«'  iKMind  to  receive  and  consider  all  writ  leu  documents  or  statements 
which  nmy  be  ]U'esented  lo  them  by  or  on  l.'ehall  of  the  respective  '^nx- 
ornmenis  iu  sujiport  of  or  in  answer  *  >  any  claim,  and  to  hear,  it  re- 
<piired.  <um'  ]teis(»n  on  each  side  on  behalf  of  «'ach  ^■overmneut,  as  counsel 
or  ajicnt  lor  such  ^'ovi'mment,  on  each  and  eveiy  separate  claim.  A 
nmjoiity  of  the  commissioners  shall  be  sullicient  lor  an  awanl  in  each 
case,  'I'he  award  shall  be  ;;i\('n  upon  each  claim  in  wiitin^r.  and  shall 
be  .sigiMMl  by  ilie  commissioners  assenliuj;  lo  it.  It  shall  be  competent 
for  each  j«'ov«'rninent  to  nanu'  one  jM'rsou  to  attend  the  commissioners 
as  its  aycnt,  lo  present  and  support  claims  on  its  behalf,  and  t'>  answer 
claims  nnuie  upon  it,  and  to  represent  it  ^icneraUy  in  all  matters  con 
nc'ted  with  the  invest  illation  and  decision  thereof. 

The  hijih  c(udiaetin;;  parties  herelty  enjL;a;ie  to  consider  the  deeision-- 
of  the  commissioners  us  altsobilely  tinal  and  cenelusive  u|)on  «'ai'h  claim 
ilecided  upon  by  them,  auil  to  j;i\e  iidh'Ifect  to  sutrh  dv'ci.sions,  without 
any  ()bje.:tu»n,  e\asion,  (»r  delay  whatsoever. 

Ainu  1  i;  N  l\  . 

Every  claim  shall  b«'  presented  to  the  commissiiuuMs  within  six  months 
I's  un  the  day  of  their  lirst  meeiiiii:,  uidess  in  any  case  wheiv  reasons 
lor  delay  shall  be  established  to  th«*  s;itisfaction  of  the  commissioners. 
ai.»l  tht'ii,  and  in  any  such  »'ase,  \inv  perio.t  tej-  |ireseniiii.ii  the  claiiii 
ina\  be  evtended  i»y  them  to  any  tiiiM'  m>t  e\c<'ediiij,i  three  months  lon<;ei . 

The  commissjoncis  shall  b«'  liound  to  f\. inline  and  decide  upon  ever,\ 
claim  within  two  years  troin  tbedny  o  iu-ir  tirsi  meeting:,  it  shidl  tte 
competent  lor  the  ciuiuiii-^iouers  t«  4«»«*i4ie  in  each  «*ase  whether  an\ 
i-laim  has  or  has  not  been  duly  mad*-.  jU'  -  r-  i.  :iud  laid  belbte  them, 
cither  wholly  i>rtuany  autl  wlmt  e\i«'nt,a.  .._  .<>  the  true  urteiit  and 

iiieanin;;  of  this  ireatv. 


Al!  sums  4»t  inone>   *hiek 
ao(*oiint  of  usv  cSim  sfaall  I'm  t-iiA 


ITLK   \V. 

he  awardtMl  iiy  th«  commissioners  (ui 
!•     li.'     >;u'  }<;ov»MnmiMil  to  the  othei. 


AOENTS    UKPOUT. 


177 


as  tlio  cjiso  may  bo,  within  twclvo  inontljs  iilYor  the  (Into  of  tlio  liiiul 
iiwiinl,  witlioiit  iiitoivst  iiml  without  any  <'»"!;;. ;ti()ii,  suvo  as  spccitii'd  in 
Article  XVI  of  this  treaty. 

Article  XVI. 

The  coriimissioiicvs  shall  keej*  an  accinale  n'(M)r(l  and  corroct  ininnto.s 
oniotcsof  all  their  proccciiiiiys,  with  the  dates  thereof,  and  may  appoint 
and  employ  a  seer«'tary  and  any  other  necessary  »)llieer  or  ollicers  to 
assist  them  in  the  transaction  of  the  busiiicss  which  may  come  before 
them. 

Kaeh  j;ov<»rnment  shall  |)ay  its  own  eommissiom'r  ami  a'i'ent  or 
counsel.  All  other  expenses  s!iail  l)e  defrayed  by  the  two  jjovevn meats 
in  etpml  moieties. 

The  whole  expenses  of  the«'ommission,  ineludinj;  eontinjjfent  expenses, 
shall  be  <h'fraycd  hy  a  ratable  deduction  on  the  amount  of  tin*  sums 
awanh'd  by  the  commissioners,  provnlel  always  thit  such  deduction 
shall  not  exceed  the  rate  of  live  pt'r  cent,  on  the  sums  so  awarded. 

AuTicLi:  XVn. 

The  hi^h  coidraetinj;  ]>arties  en;4a;;'e  to  »;onsider  the  result  of  the  i»ro- 
cccdin^s  of  this  commission  as  a  full,  perfect,  and  final  seitliMnent  of  all 
such  claims  as  ar«'  nuMitioncd  in  Article  XII  of  this  treaty  upon  either 
ptvernment;  ami  further  i-n^^a^-'e  that  every  such  <daim,  whether  or  not 
the  sauM^  may  have  be«'n  i»resentcd  to  the  notice  of,  made,  prcferrecl,  «)r 
laid  hefore  the  said  commission,  shall,  from  and  after  the  conclusion  of 
the  proceedinins  ol  the  said  commission,  be  considertid  and  treateil  as 
linally  settled,  barred,  and  thenceforth  ina<lmissible. 


■1  '^l 


»    ■ 

li  u  h'8  of  th  c  CO  mm  i.ss  ion. 

1.  Tn  ad<lifion  to  the  representation  of  his  claim,  and  the  |)ruofs  in 
8a|»port  tli<'rc(»f  wlil'li  shall  have  been  lucsented  to  his  ;;()\  ci  iuicmI  ,  the 
chnma'l  shall  lile  in  the  otiice  of  the  comnnssion  a  statement  ot  his 
claim,  in  the  form  of  a  ud morial,  addressed  to  the  commission. 

-.  Every  nuMuorial  shall  shit*'  the  full  name  ot  the<'laimant,  the  place 
and  time  of  his  birth,  and  the  phu'c  or  })lae(>s  of  his  r«>si4h>nce  lietween 
tlu'  1.*?th  day  of  April,  isci.and  lln-  *.»lh  day  of  April,  l>i«Io,  inclusive. 
If  he  be  a  naturalized  cili/cii  oi  sul>ject  of  the  ^^overnmeii,  l»_\  which 
his  <!laim  is  |)n  ^cnt«'d,  an  authenticated  copy  of  the  record  ol  his  natu 
rali/ation  >hall  be  appended  to  the  mcmoiiiil.  Ai.d  the  memorial  shall 
also  stale  whether  he  has  been  naliirali/.ed  in  an  other  country  than 
that  ot  his  birth  ;  and,  if  not  so  naturalized,  whet'ier  tie  has  taUen  an\, 
and  what,  steps  toward  beiiiL;'  so  naturalized. 

.'{.  it  the  claim  be  preferred  in  be-all'  of  a  linn  or  association  ot'  prisons 
other  than  a  corporation  (U'  joint  stock  ctunpaiiy,  the  names  of  e.ch  per 
Mill  interested,  Itoth  at  the  date  of  the  .'tim  accrued  and  at  I'.e  date  of 
v<'ril',viii^  the  memorial,  must  be  stated,  wiln  '^lie  proporti  -us  of  each 
person's  interest.  And  all  the  particulars  al)ove  rei,.''''ed  '.o  lie  ;;iven  in 
the  case  of  individual  claimanls  must  be  stated  in  respeijtuf  each  mem. 
12  II 


ITS 


AMKRICAN-FJIUTlsit    CLAIMS    COMMISSION'. 


W 

i 


t 


Imt  of  sMcli  linii  or  assixtiiitioii,  unless  tlu'  saiiu*  ho  <lisiM«ns«'(l  witli  on 
sinM'ial  order  ot  tlie  (;oiniiiission.  ll'  iiii.v  trniisCer  of  the  elaiii,  or  aiis 
l)art  thereoC,  Iia.s  occinred,  tlie  nature,  and  mode  of  siieli  trau^fei'  must 
be  stated. 

•1.  The  Mieinorial  must  slate  tlie  |):utienlars  of  the  claim,  the  ^M-tK-ral 
grounds  on  which  It  is  fonndeil,  an<l  the  amount  claimed.  It  shall  he 
verilied  h.vthe  oath  or  alVirmation  of  i!u'  <'laimanl,  or,  in  the  case  here 
inafter  provided,  of  his  a;4('nt  or  at  toriM'y  ;  or  if  the  claim  l)i'  Ity  a  liiiii 
oi' an  ine()r|»oiate  associatioii  of  jtersons,  then  l»y  tlu'  oath  or  allirmatiun 
of  one  of  them  ;  or  in  the  ease  of  a  corporation  or  joint  stock  company, 
by  the  oath  or  allirmation  ot'  tlie  president  or  other  olbcer.  Such  oaths 
or  atlirmations  may  be  tai^en,  if  in  the  ('nit«'d  States  or  (ii'cat  Ibitaiii, 
luMbre  any  ollicer  ha\  in;;  authority,  aecordiii;^  to  the  laws  of  the  place, 
to  administer  oaths  or  alVirmations ;  and  tlu'y  may  be  taken  in  the  said 
i'ouutrics,  OI'  elsewhere,  befoic  any  consul  or  diplomati<'  a^ent  of  eitlici 
^'overnneMil.  The  veiilicaf it>u  nniy  l>e  by  tlie  a^eiit  or  attorney  only 
when  veiillcatioii  by  the  claimant  is  substantially  imprai'ticable, or  can 
only  be;4i\t'U  at  ^reat  inc(in\eiiience.  And  in  caseof  veritication  i>y  anient 
or  attt)rii«'y,  the  cause,  of  tlu'  failui-e  ol'  the  claimant  to  verify  it  shall  ln' 
staled. 

()i>jeetioii  to  the  Jurisdiction  of  the  commission,  or  to  the  sul1icienc\ 
of  the  case  stated  in  the  meimuial,  may  be  made  in  the  tbrni  of  a  ^h• 
murrer,  slalin;^'.  without  technical  iiicet\,  the  substantial  i^ronnd  ottlir 
objection.  .Any  new  matter,  constituting^' a  special  ^Mound  of  defciise. 
may  b'  sta(e<l  in  a  plea,  which  may  bf  the  subject  «>f  demurrer,  ami  all 
demurrers  may  be  set  for  hearing'  oii  a  ten  days'  notice. 

.').  I'iVcry  claimant  shall  be  allowed  two  mouths,  after  the  fdinifof  his 
ineiiKU'ial,  to  complete  his  proofs;  and  after  the ctmipletion  of  his  proofs, 
and  notice  thereof  ;;i  veil,  two  months  shall  be  allow«'d  for  takin;;'  proofs 
l(U'  the  defeii.se,  with  such  further  e.\tensi(Ui  oi"  time,  in  each  case,  as  the 
commission,  on  application,  may  yrant,  for  cause  shown. 

Attei'  the  proofs  on  the  part  of  the  defense  shall  have  been  close<l.  the 
eommissioii  will,  when  the  <'laiiuant  shall  desiie  to  take  relmtl  in;;  proof, 
accord  a  reasimable  time  for  the  purpose. 

(5.  .Vll  depositions  after  the  liliii;;' of  the  memorial  shall  be  taken  on 
noti(H',  specifying;  the  time  and  place  of  takiii;;,  to  be  tiled  in  tiie  ollicc 
of  the  coaiinission,  witli  a  «'oi*>  of  the  iiiterro;;atories,  or  a  stateiueni  in 
writing;  by  the  counsel  of  tlie  ;ioveriinn'nt  adduciny  tin*  witness,  show- 
ing tin' schject  of  the  partii'iihir  exaiuiiiatioii  with  suHicient  precision  to 
be.u'cepted  by  the  c(miisel  of  the  ;;overnmeut  a;;ainst  whom  smrh  wit- 
le'.ss  l.s  to  be  prodilce(l.  to  be  si;;iiilieil  by  his  iudor.seineiit  I  hereon.  Such 
intei;;";atori<'S  (M- staleineiii  to  be  tiled  in  tlu*  ollici' of  the  c(Miimissi(»ii 
at  least  lifieeii  days  lietoie  the  day  naaied  for  tlie  examination,  with  one 
a«lditi('ii;il  <lay  Ibr  every  live  humlrc'!  miles  of<listance  fn>m  Washin;; 
ton  to  tile  place  wln'ie  the  deposition  is  to  be  taken.  NVheii  ile[iositioiis 
are  to  be  taken  clsevvheri'  than  in  N;irth  America  thirty  days  »vill  lie  a! 
lowed. 

7.  i'very  deposition  taken  in  the  I'liited  St. lies  shall  be  taken  before 
8oine  oiUcei  autlnn  i/.eil  to  take  depit>itious  in  caus(>s  pending  in  courts 
of  tlu'  riiiled  Slates.  UepositioiiH  in  ( Jreat  Ibitain  and  her  posses 
sioiis  may  be  taktui  before  any  person  auThori/ed  to  take  deposititin.'^ 
to  be  c  ed  ill  courts  of  record,  or  any  Justice  of  the  peace.  Depositions 
ill  tlnise  countries  or  elsewhere  may  be  taken  before  any  consul  or  diiilo- 
MMtic  ainent  of  eitluM  jiovernmeiif. 

In  all  cases  tim  <'ross-e\aiiiinalioii  of  the  witness  may  be  by  written 
iuterr«)jy;alorie8,  or  orally,  in  the  election  of  the  jmrty  cro.s.s•examinini,^ 


AGKNTS    1!KIM)UT, 


170 


S.  Tlio  roiminssionois  mny  iit  iiiiy  tiiiu'  isMicn  spcciiil  (•^)mmi.ssi(ni  for 
the  tiikiii;^'  <»r  tcsliiiKtiiy  on  tln'  ;iu|tlic;ili(tii  of  citlicr  i»iirly  ;  siidi    1»'n1i 
iiiuiiy  to  lie  liiKcii  citlirr  in  wriilm  inlcnouatKiics  or  orally,  as  tliccoin- 
iiiissioncrs  mas  ordiT. 

The  coninii.ssjoncrs  may  als(t.  on  motion  of  rillicr  i>aity.  ordci-  any 
claimant  oi'  w  iinrss  to  appear  pcisonally  hcloic  llicm  lor  examination  or 
crosscxaminalion. 

i>.  When  any  original  papers  filed  in  t/jie  St;ite  I>cparlment  (»f  the 
I'liiletl  States  oi- in  the  aicliives  of  the  I'.ritish  le^iatmn  in  \\'a.shin;;ton 
cannot  l.e  conveniently  withdrawn  Irom  the  lih's.  «'oi»ies  thereof  will  We 
recei\cd  in  e\idence,  when  certified  l>y  the  State  Department  (tr  i»y  the 
I'.ritish  le^^alion,  as  the  <'ase  may  he. 

10.  Wjieii  tlu'time  has  j'xpired  toi-  takinj;  proofs,  or  the  ease  has  heeu 
close(l  on  both  si(h's,  the  proofs  will  he  ininled  nnder  the  direction  of 
the  secretary,  and  at  the  expense  of  the  commission.  'I"he  ar;;nmenr 
for  the  claimant  shall  he  tiled  within  lifleen  days  alter  the  paper  shall 
have  heen  printed,  and  the  ease  shall  stand  foi-  hearing;'  ten  days  there- 
aitei'. 

11.  The  seeictary  will  prepare,  from  time  to  time,  lists  of  cases  roady 
for  licaiiu;;-,  either  njiDii  deaitirrer  or  np(»nthe  mrrits,  in  the  order  in 
which  they  are  entitled  to  l>e  heard,  oi-  in  which  the  connsel  for  the  two 
f-'overnments  shall  a;:re('  that  they  shall  lie  heard. 

I'.J.  .\1I  cases  will  lie  snhiiiittcd  o:i  printed  ar;!iimeiils.  u  liich  shall  con- 
tain a  statement  of  the  facts  proven  and  rcfeicn*'!'  to  the  e\  idene(^  hy 
which  they  are  proven,  and,  in  Kthlitinn,  the  connsel  lor  the  respcittive 
;:o\  crnments  will  he  hea\tl  n  liencMr  the\  <lesii('  to  ar;;iie  any  cause  orally. 
Ai';^nments  ol' counsel  tor  iiidi\  idual  claimants  will  Im>  receiNcd,  in  print, 
wlu'ii  snitmittetl  hy  the  counsel  (»f  either  jnoveriuneiit,  and  not  other- 
wi.so. 

!.■).  Claims  aj^aiiist  the  Tinted  States  and  ( Ireat  llriJain,  respectively, 
will  he  entered  in  difi'eiciit  dockets  kept  h\  the  secretary.  The  dock- 
ets shall  contain  an  ahstra»!l  ol  .dl  proeeediii;;s,  motion.v,  and  oiders  in 
each  ease. 

11.  The  secretary  will  keep  a  record  of  the  i>r()«'ee(liii<f«  of  the  coin- 
mission  upon  each  day  ot"  its  session,  which  shall  he  n'ad  at  the  next 
meetiii;,'.  and  will  then  he  sailed  hy  him  ami  approved  hy  tiie  si;;iiatiire 
of  the  presidiii;;  commissioner. 

I."i.  'hie  secretary  will  keep  a  tiotieeborik,  in  which  entries  may  ho 
made  hy  the  eoiiii.>el  for  eitln'r  ;L;(tveriiment,  and  all  entries  soinade  shall 
he  iiiMlce  to  the  opposin;;  eoiili>el. 

Hi.  The  secretary  shall  pi'tniih*  lii>oks  of  printed  forms,  in  which  will 
he  recoided  the  awards  of  the  commission,  si;^ne<l  hy  ihe  commis>ioners 
eoiicmrinj;  therein.  Tiie  awards  aj;aiiist  each  yoNcrimu'iit  w  ill  lu'  kept 
in  a  se|)arate  hook. 

17.  A  (Mipy  (»f  each  award,  certitied  hy  tlie  secretary  of  the  commis.sion, 
will  he  iiii  nisheil,  on  request,  to  the  party  upon  whose  claim  .sueli  awanl 
shall  have  heen  made. 

IS.  Tile  dockets,  minutes  o(  proceedin;:'s,  ami  records  of  awards  will 
he  kept  in  duplicate,  one  ot  wiiich  wiil  he  dclivervtl  to  each  y;overnment 
at  the  close  ot  the  duties  of  the  eonunission. 

HI.  TIh' secretary  wil  ha\e  eliai';it' of  all  the  books  and  papers  of  the 
eoiiimission,  and  no  papers  siiall  lu' withdrawn  Irom  the  tiles  or  taken 
from  the  otlice  without  an  lutler  of  the  eoiiimiwsiiin. 


I 


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inSTDEX. 


BRITISH  CASES. 


pl 

m 

Um 

ym 

1 

m 

1 

A. 

Ho 

Adam,  William 72 

Adhtni,  Geoifjo 40 

Alexander,  K.  S.  C.  A.,  execiitors  of  the  estate  of 45 

Alsop,  Francis 55 

Almond,  William 407 

Amy,  John,  trustee,  «fec.,  et  al.,  htlg  Volant 388 

Anderson,  William  li 114 

Anderson,  Saxon  &  Co 2',VJ 

Amireae,  Theodore 4.')!) 

Aiijjel,  Thomas  Elliott,  et  al.,  bark  Science IWl 

Arkwrijfht,  Thomajs 30;i 

Armitage,  Laura 305 

Arniita<;e,  Robert ! 348 

Armstronjr,  Elizabeth,  administratrix 251 

Armstrong,  Robert 251 

Armstroiifj,  Walter 45^3 

Ashtou.  William 3'>5 

Atkin,  Robert 475 

Atkinson,  Christoplier 381 

Austin,  Thomas  I'hipys 415 

B. 

Baer,  Herman,  (M.  D.,)  administrator 297 

Bailey,  William,  and  William  Leetham,  etal 38(5 

Bain,  James 231 

Baines,  Ebenezer 106 

Barker,  Henry  James,  mortgagee 432 

Barclay,  Anthony 5 

Barnesl V,  Godfrey 1(52 

Barrett"  Ed.  Alfred 18 

Barrow,  Mai-y  Ann,  administratrix 343 

Barrow,  George 343 

Bari'on,  Forbes,  &Co 314 

Barton,  Alice,  executrix 242 

Barton,  Richard  C 212 

Barrv,  Thom.as 127 

Bates  Edward,  (M.  P.) 429 

Bateman,  Charles  D WO 

Battersby,  William 3t)() 

Beattie,  James  M 119 

Beattie,  William  C 445 

Bell,  Conway 179 

Bell,  MatherweJl  M 274 

Bell,  Peter,  and  William  Scott 382 

Bennett,  William  H 137 

Bennett,  Ed.  J.,  alias  Arto  Croger 159 

Bennett,  Elizabeth,  executrix 471 

Bennett,  Benjamin 471 

Bevitt,  Joseph  Jacksou 104 

Bigland,  Amos 199 

Binney,  Joseph  Walker 352 

Bird,  James 245,428 

Birdsell,  Wilhelmina 218 

Black,  Charles 123 

Biackburne,  O.  P , 477 


SS!  ,,     .I*'* 


agent's  report. 


219 


4:'.2 
5 
1()2 
18 
343 
343 
314 
242 
212 
127 
429 
H>0 
3l)G 
11!) 
445 
179 
274 
382 
137 
159 
471 
471 
104 
199 
352 
.245,428 
218 
123 
477 


Xo. 

Holin,  HnnryG 342 

liMrt'oii,  Jiniius 144 

lio\v(l»!ii,  Koliort 41'J 

Bi)\vie,  Elizal».'tli  L.  11 320 

liowmaii,  Williiiiu 47rt 

Booth,  William  H 143 

IJoHtock,  Eli/abotli 133 

Boyil,  Rev.  Frederick  \V 54 

Braithwaito,  .Jonatliaii 3i 

Bradley,  Stephen  J 337 

Brain,  Elizabeth 447 

Brain,  John 44? 

Brand,  Jane  L IHq 

Bretherick,  BiMij.  J 2(5l 

]{retherick,  (Jeo.  M 25rj 

Briti.sh  ami  Foroiyn  Marine  Insurance  Company 245, 42fj 

Brook,  Sanmel.... .' l)<) 

Brown,  Andrew <>;{ 

Brown,  Andrew 11-2 

Browne,  JoMt^ih  J 37 

Brown,  Willliam 2(^0 

Brown  &.  Sharp 3^ 

Browne,  David  J 17o 

Browne,  David  J 327 

Brnce,  VV.J 29 

Bull,JaiH«, : 2O9 

Burden,  J(din  C  31^ 

Burden,  Ein ma  (}.,  administratrix 3lj 

Burke,  Ellen,  heirs  of 13q 

Burnsido,  John 5;^ 

Burton,  William  John I74 

Butterworth,  Jno.,and  Jno.  Ho  worth,  executors 35;} 

Byrne,  John  K 20„ 

Bj  rue,  Thomas 20(3 

Byrne,  Andrew  E.,i't  al 31r, 

Byrne,  Thomas 34() 

Byrnes,  Roderick 21*3 

C. 

Cairns  &  Co.,  John 39 

Calderwood,  Martha  M.,  executrix 3(10 

Calderwood,,John 3(>0 

Campbell,  A.  E.,  &.  Co 290 

Campbell,  S.  Isaac,  &  Co 31G 

Campbell,  George  453 

Care  w,  John 224 

Carlisle,  Hnj;h 319 

Carmalt.John  W 89 

Carmody ,  John 85 

Carroll,  Francis 44G 

Carson,  Robert  M 178 

Cauty,  George  F 443 

Cleary,  William 220 

Clements,  Neheraiah  K 107 

Cleveland,  Mary  C 69 

Cleworth,  Charles 48 

Coates,  Thomas 332 

Cogan,  William " 19(J 

Cogan,  William,  executor 242 

Coleman,  Charles 232 

Colemau.L.L.L.,  administratrix 232 

Collie,  Alexander,  e<  al !W5 

Collie,  Alexander,  e<  al 376 

Collie,  George 458 

Cooper,  George 28;J 

Cornwall,  Isaac  B.  and  Eliza  B 140 

Corry.T.A 243 

Cowley,  John  J 291 

Cox,  Henry  E.,  and  Alfred 229 


(.•■'■'? 


if 


i      ■:) 


220 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


Crawford,  John  Isnncs 71) 

CreiKliton,.J.G.A.,&  Co :»7rt 

CroNH,  John  K.,hihI  Edward IttW 

CroHHc,  Thomas  N '.\'>0 

Crow  &  Wvlio ;')<» 

Crowthor  Lhnvolyu , 'M'i 

Cnitchott,  James 4 

Ciuimiug,  James  and  Sarah  P 94 

D. 

Daiy,  Charies 143 

Dalgety,  l)n  Croz  «&,  Co.,  eoiisifjnees 4(il 

Danserean,  Pierre ()7 

DavidHon (Hi 

Df^acoM,  Tliomas  L h7 

Dean,  William,  &  Co '.Mm 

Dean,  Philip  G.  B Hm 

DiM^hen,  John 211(1 

Digniim,  Robert )5(IS 

Dobbins,  Walter  John 25 

Donnelly,  Bernard,  administrator 3'2'.) 

Donnelly,  William HI 

Dorrinj^ton,  James 'MH 

Dowling,  Timothy 30 

Downinfi;,  Hannah  R 4r)0 

Doyle,  Francis 46 

Dronke,  Ernest 371 

Dnrty,  Alieeand  Ellen If.O 

Dunn,  William 10 

E. 

Eagin,  Patrick,  iidniinistrator 81 

Eakin,  Robert 118 

Easton,  Walker,  trustee,  &c 3t)0 

Eastou,  Walter,  assij^neo 431) 

Edgeley,  Thomas,  et  <il 441 

Elsworth,  Ernest 4'2(] 

Elsworth,  John 438 

Elsworth,  John  Henry 390,421 

Eneas,  Joseph 12G 

English  and  Scottish  Marino  Insnrauco  Company 245,428 

Eustice,  Richard  Henry l()(i 

Evans,  Arthur  C.  and  Frances 26:} 


Faill,  James,  and  J.  McCulIoch,  executors 452 

Facer,  Thomas  Howard 203 

Fagan,  James 50 

Ferris,  John  C,  administrator 212 

Fisher,  William  Henry 37i) 

Fleming,  George 405 

Fleming,  Charles 309 

Fogg,  Samuel 436 

Forbes,  John  Carmichael 300 

Ford,  Curtis  &  Curtis 409 

Ford,  William  G.,  administrator 328 

Forwood,  Arthur  B.,  and  James  Dorriugton .^ 392 

Forwood,  William  Bower 394 

Fox,  Patrick 336 

Fraser,  Donald 455 

Eraser,  Thomas    91 

Frost,  Frederick  D.,  et  al 414 

G. 

Gabriel,  Thomaa,  &  Sons 840 

Gale,  John '. 247 


agent's  report. 


221 


No. 

fJalltmith,  John  Oriilmm 39(),4;«» 

(ialliclmn,  M - :«'^'"^ 

(Janctt,  Liicy  !''•)  twliuiiii»tnitrix ;«•'.) 

(iiiiry,  Mitiliat'l <iO 

(iaii^rlK^ii,  Joliii 77 

(ilMlllllill,  Jiimt'H H-' 

Giininl,  Edwin,  asHiKin-is '-^'♦•^ 

Ot'iiird,  Edwin,  asMij;nt!c '^44 

Gtfrard,  Edwin,  aHsij^noo ^45 

Gibson,  Rohurt TiO 

Gilland,  Eniilv  J '271) 

Gilliat,  William  Henry y-») 

GiniHon,  William y.'')4 

Glover,  Konrv 1!'4 

Goldinp,  William l'2'2 

Grace,  Michael V.\2 

Grunt,  ThonniH 211 

Grant,  William  M H-* 

Grant,  Brodie,  »fc  Co 4'<J4 

Graveley,  Cowlam iiU'i 

(irayson,  Ann,  administratrix 2\)l 

Green,  Charles Itil 

Gribble,  Joseph 1  Ui 

Grongan,  Anna  C,  executrix ir>r) 

Grongan,  Patrick  R ir)5 

Guiumer,  John '^1 

H. 

Haddon,   Samnel  Hall 107 

Hall,  William  E 'M\\ 

Hall,  Richard WIS 

Halley,  James  H.,  administrator 205 

Hannah,  John  Hcduies 2 

Hannah,  Alexander  M 472 

Hansberry,  William l(ii) 

Harris,  John  H 113 

Harris,  John  B 124 

Harrison,  David  and  Thomas '.H\7 

Harvey,  Eugenius,  et  al 214 

Haskins,  John 301 

Hayes,  Ann 158 

Hayes,  Lizzie,  and  Sallio  Bonn 100 

Hay  ward,  Oliver  C 176 

Hebdou,  Thomas 2()7 

Henderson,  Henry 41 

Hennegan.  John   Joseph 148 

Henry,  A.  S.  &  Co *    243 

Henry,  William  P  1411 

Hewetson,  Barry  Drew 2U7 

Heycock,  Jos.  B.,  administrator 2(53 

-^  I  I  11  t   \j   II  €1  I  IC'C)  ■  !■•  ■«*»■•■**«■  _•>■  >aas  •>*>>■•>•«>•  aataaa  savsaa  ■*>■••  ■«*•>•>  ••«■•  1^  4   *W 

Hill,  John  123 

Hill,Mary  Sophia 8 

Hill,  iMary  Sophia 198 

Hine,  Mundella  «fe  Co 425 

Hodges,  Charles 355 

Hodges,  William  R 354 

Hogan,  Rosanua 221 

Holgate,  James 410 

Holt,  Henry 73 

Horton,  Henry 437 

Howorth,  John,  executor 353 

Hughes,  James  K (58 

Hughes,  William,  administrator  of  estate  oi 58 

Hutchinson,  Mary 277 

Hutchinson,  Alexander  W 4(52 


1 


r     i:- 


■■  .^'1 


fl^-TT. 


I!  J 


ri 

, 

'fflBirn 

222 


AMERICAN-HKITISH    CLAIMS    COMMISSION. 


I. 


N.I. 

Iniiian,  Rirliard  W Vil 

Iiiipy,  rraiiciH (i'i 

IimnraiKM*  CoinpaiiieH  and  UnderwrlteiH  at  LloydH 444 

Irwin,  Mary !l<il 

Irwin,  William :   Kt 

Irviii,  Samuel  »&  Co '<V2'i 

Isaac,  *amn«^l '47 \ 

Ivey,  William  and  John 4 18 

J. 

JnckHon,  Jolui 2'w 

JiK-kson,  Susan  HaiU^y '«i')"2 

•lacobH,  David ^i'M't 

tJacnlm,  Henry  S Ki:! 

Jarbou,  Saiimel,  guardian IWU 

Jarman,  8te|di«Mi,  and  Charles  F.  Smith 417 

Jarman,  Stephen 41'^ 

Jay,  Eliza  J.,adminiHtnitrix iHtl 

Jay,  JamcH Iriti 

,f(ihnst«>n,  Andrew  L '.Mi 

JoluiHon,  Catharino  J,,  executrix ...   44i( 

Johnson,  Charles (14 

Johnst(m,  Peter 10 

Junes,  Georyo  J , - 270 

K. 

Kater,  John 19 

Kay,  Henry 3r)H 

Keiioe,   Martin I'-i.') 

Keith,  William llVi 

Kelly,  Michael XW 

Kennedy,  John  W 120 

Kerford,  George  B , 4f)8 

Kernahan,  A 151 

Kergan,  Thomas 3:W 

Knighton,  Eliza 188 

Knowles,  Elizabeth 17') 

King,  Oliver  K 288 

L. 

Lafono,  Alfred 411 

Lufone,  Henry,  and  John  T.  Lawrence 389 

Lafoue,  Henry,  and  John  T.  Lawrence 4U0 

Lane,  William  Henry 9 

Lanrie,Son  &  Co 321 

Lavell,  Bridget , 131 

Lawrence,  John  T 389, 430, 431 

Laycock,  J , . 243 

Leach,  Thomas 189 

Leach,  Thomas .    289 

LeConterre,E 388 

LeCra8,J 388 

Lee,  Joseph , 219 

Leech, Harrison  »fe  Forwood 393 

LeGros,T.  C 388 

Lemonius  &Co 384 

Lemienx,  Nazairo 215 

Le  Questie,  Charles,  etal , 395 

Lc5>lie,  James 252 

Levy,  Samuel  G 61 

Lewtn-s,  Henry  A 457 

Lewis,  John  L 201 

Lewis,  Sheldon 287 

Lloyds,  underwriters  of 244,245,444 

Loft,  John,  mortgagee 387 


N.I, 
444 

■^71 
4Jfi 


2;").') 

2'^'i 

....  Ki:'. 

....  :»','ii 

....  417 

41H 

]H) 

iHi; 

DC) 

44i» 

r.4 

If. 

27G 

19 

3r.3 

1-25 

un 

-xw 

I'iO 

4(W 

151 

3:w 

188 

175 

288 

411 

38'J 

4:50 

9 

3-21 

i:u 

389, 430, 431 

243 

.  ..  189 

289 

388 

388 

219 

, 393 

, 388 

384 

215 

395 

252 

61 

...  457 

201 

287 

.244,245,444 
387 


agent's  report.  223 

Lonjj. -TamPH 841 

LiiiiiK'Kiiii.'Joliu  J 117 

Liincli,  Aiiim 4i:i 

Lowe,  Williiiiu 12U 

M. 

Mi1»«n,  Thomas  S.,a(liiiiiiiHti'ator IIU 

Miicuiilov,  .JaiiiCH  A 21)0 

Ma  V,  ThoiiuiH 44*i 

M.^Anally,  Patrick 473 

M('Maiii,.loliii  (t 30 

JieCabo,  Kilwartl 11)7 

MoCabo,  James 24 

Macoiichy,  Hoiiora 80 

Maf?uir«s  Aniiilial 3d 

Maudor,  CliarloH 110 

Manvvariiig,  Jolm 7(? 

Marcliei,  Jamos IH'i 

Marshall,  Norton,  cxfcutor 183 

MarHhall,  William  T , 40-i 

Martin,  Jamus  and  Richard 434 

Ma«ou,Janot,  administratrix 445 

Mayhew,  Cliarles 17*i 

McC'ann,.John 173 

McClure,  Janet  M 202 

McClure,  William  IJ lO'i 

McColl,  Normen  W.,  administrator 307 

McColi,  Hugh 307 

McCnlloch.John  M 452 

McDaniel,  James 1(W 

McDonald,  Angustino  Ralph 42 

McDonald,  Angnstine  Ralph 334 

McDowell,  Thonnis 15 

McDowell  &  Haliday 397 

Mcfllhose,  James  H 225 

McEwen,  Charles...- 452 

McHngh,  Edward,  administrator 357 

Mcllngh,  James 357 

McKay,  William 299 

McKeown,  Robert 4()3 

McLean,  Stephen 11)1 

McLennan,  J<din 370 

McLeod,  Ezekiel,  assignee 399 

McLeod,  Henry  A 30($ 

McMahon,  Thomas 22 

McMahon,  Thomas , 136 

McMillan,  Alan  K 250 

McStea,  Nelson 349 

McVea,  James 208 

Meagher,  James 317 

Medcalf,  John 177 

Mews,  John  &  Co 331 

Millar,  William  Scott 157 

Miller  i&Mossmau 398 

Miller,  T.  J.,  a^jas  T.  F.  Sherman 359 

Miller,  William 435 

Mills,  Harriet  A 70 

Milner,  Isaac ; 207 

Milner,  Joanna  R.,  administratrix 207 

Milner,  Sanmel 259 

Mogridge,  Joseph  Fry 345 

Molyneanx,  Eliza  H.,  executrix 323 

Molyneaux,  Edmund 323 

Money,  George  Henry,  and  James  William  Bailey 3'>4 

Monroe,  James  T 2;«j 

Montgomery,  Archibald 256 

Montgomery,  Robert  H 20 


if. 


224 


AMERICAX-BRITISH    CLAIMS    COMMISSION. 


W%'> 


;rAs' 


it'll 

11- 


No, 

Moody,  Henry Sfif) 

Moody,  Homy  A.,  administrator ati;-) 

Moore,  Georj^e -  U7 

Moore,  Jacob  Turner !^4 

Mr)ore,  Mary  Louisa 3t*'.\ 

Moore,  William 7'> 

Moriarty,  Michael 470 

Miirdock,Klizaand  Jane ai'-i 

Murdock,  Marion  D (if) 

Mnrpliy,  John H'-ili 

Mnrphy,  Joseph \ittV) 

Murray,  Anne •-  2ti 

Murta,  John I'Jf) 

Myers,  Charles 374 

N. 

Nairne  CharlesM 469 

Neanies,  Daniel  U liM 

Nelson,  Eliza  Bailey 140 

Newberry,  Aaron 7ri 

Nicol,  Alexander 105 

Nicolson,  Colin  John 2'i;\ 

Noble,  John  D 2d:j 

Molan,  Joseph,  M.  P 27'2 

Nolau,  Mary 27',i 

O. 

O'Bannon,  Thomas ; 474 

0'Brvan,C.Ku<,M-nia 21W 

O'Ury  an,  Perry. 2!W 

O'Connor,  Valentine  O'B 404 

O'Donuld.John  William ;j 

O'Donnell,  Hugh lOcJ 

O'Hara,  Anne 1155 

O'Keetl'e,  James 14 

O'Mnlligaii,  Patrick  J 47t') 

O'Neil,  Jeremiah 141 

Orr,  James,  and  sisters 1^7 

Orrock,  Robert 27 

Osborny,  Charles  ^.,  ct  nl 412 

Overend,Gurney  &  Co 43:J 

P. 

Palmer,  Archibald  D 1? 

Park,  Jiiicy  J.,  administratrix 2l> 

Parkinson,  Istiac  D 101 

Parr,  Frederick 4r)4 

Parr,  John,  alias  John  F 2^5 

Patrick,  William l>7 

Patton,  Samuel 181 

Peacock,  Andrew l»;{ 

Peirson,  John 171 

Pembroke,  Edward :{77 

Perrv,  John !I0 

Phillips,  Levi 21:5 

Pollock,  Agnes 20") 

Pollock,  James 205 

Pothier,  Emilia  J.,  executrix ;<04 

Pothier,  L.  U ;t04 

Potts,  Thomas 399,40:1 

Poynton,  William  B 257 

Pratt,  E,  William (i 

Pringle,  Thomas f^ti 

Pryor.John 142 

Pryor,  William  K.,  administrator 142 

Purcell,  Edward  H.  M 204 

Purvis,  John,  heirs  of VM 


No. 
2(m 

57 

7.") 
470 

ai-i 

'.VM 

ar.ii 

'-it) 

iiif) 

374 


4fi!) 
laU 
140 
78 
10,-) 

2r.:{ 
22:5 

27-^ 
•273 


474 

'iy.i 

404 

3 

108 

135 

14 
47ti 
141 
187 

•27 
41-2 
433 


17 

•29 
101 
454 
'285 

il7 
181 

1)3 
171 
377 

IN) 
'213 
'205 
'205 
304 
304 
im,  403 
«57 
(i 

88 
14-2 
14'2 
'204 
138 


agent's  report. 


225 


Q. 

No. 

Qnilleii,  Percy  M  .• 164 

B. 

RahiDiiig,  John  C 7 

Rayius  Maltha  Ann,  iuliiiinistratrix 74 

Ray nt',  Robert  Parker 74 

Kcadinjr,  Kraiik  R 43 

Kt'anloii,  Brill j^ct '2*22 

Redj^ato,  Samuel  J 390,  4'20 

Reed.  Loiich  &  Co 413 

Reid.Joiin 451 

Reid,  Rol-t-rt  M 380 

Keiinieks,  John  G .*^ 363 

Riley,. John,  assignee 442 

Riley,  Thomas 19"^ 

l{oac.h,.lohn  W VA 

Robert,  David 47 

Ri)bertt>,  Samuel  and  Richard 344 

Robin,  Andrew 146 

Kobinson,  J.  G 3*28 

Rof;ers,  .iolm  I'restou    35 

KoUa.son.Tiiomas  Henry 3.58 

Koli)li,  Frederick  Adams '238 

Kose,  W i  1! i a m 303 

Ross,  William  II 335 

Hujj;<,'les,  Frederick  W '2()4 

Kyan,  Tlionnis 1.5'2 

Ryerson,  S.  M.,  vt  al 147 

S. 

Sabourin,  Charles 268 

Sabourin,.Jane,  administratrix ^(W 

Saunders  &  Sou '281 

Sean  Ian,  William  Erastus 3*2 

Scott,  .losepii  W •2-26 

N'ott,  William .382 

Seal,  UiKlerick,  admiuistrat  r 1'27 

Seelve,  Abram  H 9d 

Shaiid,  llif^.-on  A  Hoult '270 

Slianiu)n,.lohn   329 

Shari.e,.Jolni  W  92 

Shaver,  .lolin  I .51 

Sherard.Fmily  J '279 

Sherard,  William '279 

Sherman,  F.lizalieth,  administratrix 3.59 

Sherman,  T.  V.,ulia.i  T.J.  Miller 359 

Sim))son,.Iohn 234 

Simpson,  Samiud 217 

Siniiisoii  ».V  I'itnnin 396 

Sinclair,  .loll n 341 

Sinclair,  Robert  \  Co  440 

Slater,  Bernard,  «/n»x  Charles  B Ill 

Slater,  William  Henry '246 

Sndth,  Charles  M 109 

Smith,. lanu's  B '230 

Smith, .J.din  I) 212 

Smith, .John  H 156 

Smith,  Henrv  R 461 

Smith,  Charies  F 417 

Smith,  William  Gh»8ter 194 

Smythe,  William 333 

Spcarwatcr,  Peti-r  Ann '2H4 

Spcnce,  JuHupli,  aud  George  Fleniiug 405 

Sponce,  JoHeph 410 

Spiiiuey.John 2()3 

Sterling,  Thomas 12 

15  H 


226 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


I'^ 


i 


No. 

Stevart,  Charles  E 34(i 

St-.Avait  Daniel  K t 4(10 

■jttiwait,  Klli'ii 8() 

Stewart  ,-.lum(H :j:{;t 

Stewart, 'I'lioiiias  M D") 

Stewart,  William 2Hf* 

Stewart,  William  H.,  executor I54t) 

St.  John,  Henry 14;") 

Stott,.fiinies..' 71 

Stovin,.J()lin  Carville \>:j 

Syiiie,  .lames,  administrator  of I'M) 

Synuiiers,  Georj^e -. .  'i'<i6 

T. 

Taylor,  Geortfo HGS 

Tiianii's  &  Mersey  Marine  Insurance  Co 4'27 

Thorns,  D.i  vid Kio 

Thonis,  Klizaheth  S.,  administratrix I(i5 

Thompson.  Richard  II t»:?7 

Thornton,  IJenjamin "i&i 

Thnrhei',  .l<ilin'A mi 

Tii>i»er,  William,  and  George  Taylor ;?(!'.) 

Toiijjjm  ,  .James 49 

Tooraen,  Martha  M 184 

Tonniev,  Catharine 4.")6 

Tovell,'.I..hn 44(1 

Trook,.J.  N..  administrator ;" 

Tund)letv,  I'rancis 347 

Turner,  Eleanor  W :{4 

Turner,  .John 44 

U. 

Universal  Marine  In.surance  Company i!4.''> 

Um;\vorth,.Johu  J 11 

V. 

Vernon,  J.  McAlister 3G4 

W. 

Walford,. Tames 11') 

Walker,  AllVed  Kaoul 1:5 

Wa.d,  Ii.-d.iieU _ 2i»4 

Ward,  Henry  <t  al 4G() 

Ward,  Thomas  1 

Ware,  .Joseph  E 27") 

Warm-tord,  Klizaheth  Grace... ;{")1 

Watkins,  .lolm  (V.,and  Ueruard  Donuellv,  administrators :i2() 

Watkins  A  Leiuh " 400 

Watson,  Strphen 'M'i 

Watt,  llnjrh 241* 

Waft,  Ki.liert  H.,  administrator a4S 

Watts,  Edward  H.,and  Thomas  Edgley 441 

Watts,  Sarah i>41» 

Weleh,.Joseidi 185 

Welch,  Maryetsoii  &  Co , 422 

Wetherell,  .lames 40() 

White,  Ann  27i- 

White,  Henry  Frederick 2:!:? 

Whitworth,  jiiiijamin,  et  al 21ti 

Whitty.  Williau'i :510 

Wiffj;-,  ( ieoijre 2Git 

VV\fij{,  Georp',  and  Saul  Isaac 271 

Wilkinson,. John 28 

Wilson,  Alfred,  e/fl/ ..  ..  40f^ 

iVifeon  &,  Armstrong 423 


No. 

aid 
4t;o 

Hi 
•.y.v.) 

It,') 

:]4t) 
I4r. 

71 

1:5!) 


:}68 

427 

K).") 

I(i5 

y:57 

.       5>H-J 

ytii) 

.     ;}(;'.» 

4i» 

.       1H4 

.     4r)G 

44(1 

34; 

:{4 

44 

245 

11 

364 


11". 

1:5 

2l»4 

4G(; 
1 

275 

:{5i 
:i2!) 

400 

:{72 

24^- 
24-' 
441 
2411 

m> 

422 

40(1 
27.- 

2:{:{ 

21ti 

:m 

2()lt 
271 

26 
40M 
423 


1^ 


AGENT  S    REPORT. 


227 


No. 

WilHOii,  Bowles  &  Co 409 

Wilson.. Joliii  N 210 

Wilson,  Miittliisw  , J 4(i7 

Wisdom,  William  Henry 52 

Wood,  Gv'orge  iind  Edward,  and  L.  Hey  worth 103 

Wostenliolm,  George 205 

Wrif.'-lit,  Charles 227 

Y. 
Young,  John 245,428 


AMERICAN  CASES. 


Ashley,  W^alter  Oliver 

Harlow,  Hradlev,  receiver  of  Baint  Albans  Bank 

Braiiierd,  A'dis  O , 

Brec'k,  Samuel,  and  Jonathan  Wetherbee,  jr 

Buck,  Richard  P 

Burton,  Oscar  A.,  receivc^r 

Bush.  Frederick  T.,('l  nl , 

Cl(Uigh,  Lucien  B.,  administrator 

Curtis,  Francis,  ami  Samuel  P^udicott  Peabody  .. 

Everest,  Charles  F 

Field,  Miiriaette,  admiuistratri.x; 

Field,  Sy  1  v<'ster 

First  National  Bank  of  Saint  Albans , 

Fuller,  W^illiam  and  Erasmus  D 

Hnbbell,  William  W^Uilci 

Huntington,  Collins  H 

Langdon,Seth  W 

Morrison,  Eliuas  J 

Peabody,  Saunud  E 

Saint  Albans  Bank 

Tri])}),  Josiah  Wilson 

Wales, Thomas  K.,etal 

Weeks,  .Joseph  S 

Wetherbee,  Jonathan,  jr 


SHIP  CASES. 


'Umes  of  ve wels. 


of 


Adel.     . . 
Adela.  ea., 

Adelso 

Agues,  and  cargo 

Agnes,  .and  can'o 

Aigburth 

Albion,  and  cargo 

Alert,  and  cargo 

.\melia,  part  of  cargo  of. 

'••'uui,  and  carg-.' 

Ai  ic  Sophia,  aad  cargo. 
AiC'.\c  aud  cargo 

'Vl';'  ■''::>: 

Ai;,    luut,  cargo  of 

Ariel 

Banshee.. .     

Blanche,  part  cargo  of  . . 
Boyne 


Names  of  claimants. 


Forwood  &  Dorrington 

Leeeh,  Harrison  &  Forwood. 

Henry  IJorton. 

Saunders  A  Sous. 

1(1 


Cowlaui  fTrav«'le,'i 

Saumlers  «v  oous 

do 

J.  \V.  Carnuilt 

Saunders  &  Sons 

do 

do 

.Jos.  B.  I  I<'ycoek 

Fn^derick  W.  Kuggles 

R.  M.  Carson 

■John  T.  Laurence 

Janu's  A.  Macaulay 

Beujamiu  Wbitworth  et  al. 


19 

4 

9 

8 

1« 

13 

11 

14 

18 

10 

5 

.5 

1 

3 

17 

2 

6 

14 

18 

4 

15 

12 

7 

8 


No. 


392 
393 

4.r/ 

281 
281 
292 
281 
281 
HJ) 
281 
281 
281 
2(i3 
2(14 
178 
431 
2()0 
21G 


\'\''' 


';'!« 


228 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


Names  of  vessels. 


Brillinnt,  ami  cargo.. 

Chance,  and  cargo 

Circassian 

Circassian,  freight  of 
Circassian,  cargo  of. . 
Daring 


Daring 


Dashing  Wave,  part  cargo  of 

Dasliing  Wave,  ownors  of 

Dashing  Wave,  part  cargo  of 

Dashing  Wave,  part  cargo  of 

Dasliing  Wave,  iusnrance  on  cargo  of. 
Dashing  Wave,  insnrance  on  cargo  of. 


Defiance,  and  cargo 

D.  F.  K.-ling 

Doll>hin,  i)art  cargo,  &c.,  of  .. 

Donro 

Eagle 

Echo 

Emma  Henry,  and  cargo 

Empress    

Fanny,  and  cargo 

Florida,  and  cargo 

Georgia 

Geziena  Helligonda,  cargo  of  . 

Granit<' City 

Greyhound,  and  cargo 

Hiiivvatha,  owners  of 

Hiawatha 

Hiawatha,  part  cargo  of 


Hiawatha,  i)art  cargo  oi' 

Hiawatha,  jiart  cargo  of 

Hiawatha,  illegal  imi)risonment  captain 
of. 

Hiawatha,  part  cargo  of 

Hiya 

Industry,  and  cargo 

Isahcl.  cai'go  of 

Isabella  Tliomiison,  cargo  of 

Isahclla  Thompson,  owners  of 

James  Douglass 

Jane  (.'amphell 

J.  ('.  Hoker,  aud  cargo 

John  \V.  and  cargo 

John  Wthh,  part  cargo  of 

Julia,  and  cargo 

Julia,  and  cargo 

Laliuau 

lia  Criolla,  and  cargo 

Lida, and  cargo 

Lillian,  and  cargo 

Lizzie,  and  cargo 

Lucy,  and  cargo 

Malawi,  an<l  cargo 

Maderia 

Mary  Stuart,  and  cargo 

Matamoras 

Matilda  A.  Lewis 

Minnie 

Monmouth 

M.  S.  Perry 

Napi«r,  owners  of 


Names  of  claimants. 


Saunders  &  Sons 

do 

Henry  J.  Barker,  mortgagee 

O verend,  Gnrney  &  Co 

Lloyds  &  Co 

FrKlerick  T.  Bush  etal.,  vs.  Great  Brit- 
ain. 

Francis  Curtis  and  Samuel  E.  Peahody 
rx.  Great  Britain. 

Edwin  Gerard 

Charles  Le  Quesne  et  al 

Simpson  &,  Pitman 

McDf.well  &  Haliday 

Thames  and  Marine  Insurance  Company 

British  and  Foreign  Marine  Insurance 
Comjiany. 

Saunders  &  Sons 

Mary  Hutchinson 

K   II.  Enstice 

Thomas  Leaeh 

Henry  Lafone  and  .John  T.  Lawrence    . 

Peter  A.  Spearwater 

Henry  Lafone  and  John  T.  Lawrence  .. 

John  Loft 

Saunders  &.  Sons 

do 

Edward  Bates 

Walter  Easton 

ICdward  Pembroke 

Menry  Lafone  and  John  T.  Lawrence  .. 

Miller  &.  Jlossman 

Ezckiel  McLeod,  assignee  of  Thomas 
Potts. 

Wat  kins  &  Leigh 

Dalgetv,  Du  Cioz  &  Co 

William  T.  Marshall 

Thomas  Potts 


.J.  Fiiill  ct  tiL,  executors  .. 

M.J.  Wilson 

Saundtn's  A  Sons 


(Jeorge  W  igg 

N.  K.  Clements 

James  McDaniid 

Catharine  .1.  Johnson 

(ieorge  Campbell 

Saumlers  tSc  Sons 

do 

A.  E.  Campbell  &  Co 

Saunders  «.t  Sons 

do 

Bailey  &,  Leetham 

Saunders  «fe  Sons 

.do 

Henry  Lafone  and  John  T.  Lawrence  .. 

Saunders  &  Sons 

Himry  Lafone  and  John  T.  Lawrence.. 

Saunders  &  Sons 

.1.  M .  Roach 

Saunders  &.  Sons 

O.  K.  King,  administrator 

Sheldon  Lewis 

William  H.  Fisher 

A.  E.  Byrne  et  al 

John  McLennan 

S.  M.  Kyersou  et  al 


No. 


281 

'281 
43 

4;i:i 

444 
11 

12 

244 

:5t)7 

427 

428 

2«1 

277 

im 

2H<» 
1589 

284 

:{«7 

281 
281 
429 
:i90 
377 
;!89 
398 
399 

400 
401 
402 
403 


4r>2 
407 
281 
2()9 
107 
108 
449 
4.-)3 
281 
281 
290 
281 
281 
[Mi 
281 
281 
389 
281 
389 
281 
1.'4 
281 
288 
287 
379 
315 
370 
147 


No. 

281 

aai 

>  .  .  .  . 

4:5 

..  .  .  . 

4:i:j 

.  .  .  . 

444 

5iit- 

11 

ody 

12 

244 

•.m 

,  . 

•m 

.  .  .  - 

at)7 

427 

nco 

428 

2^1 

2// 

l()l< 

1  >  -  > 

2H<» 

cc 

•MJ 

284 

ee  .. 

•Md 

.  -  -  - , 

:in7 

.  ■ . . . 

281 

•  ••  >  • 

281 

>  >  •  •  • 

429 

390 



377 

CO  .. 

;!8!» 

•.i'M 

;5'jy 

400 



401 

.... 

402 

4o:i 

4r)2 

.... 

407 

.... 

281 

2()9 

lt)7 

108 

449 

4r):5 



281 

281 



290 



281 



281 

;5N) 

281 

281 

0  .. 

389 

281 

oe.. 

389 



281 



1.-4 

>  ■  >  • 

281 

>  >  •  • 

288 



287 



37!) 

•  ■  •  • 

315 

•  >  ■  a 

370 

■  •  •  • 

147 

AGENTS    REPORT. 


229 


Names  of  vessels. 


Nelly,  aud  cargo 

Paciliqiie,  owners  cargo  of 

Paciti<iue,  owners  of  vessel 

Patinos 

Pearl 

Peterhoif,  owners  of 

Peterhott",  part  cargo  of 

Do 


Do 

Do 

Do 

Do 

Do 

Do 

Do 

Do 

Do 

Do 


rcterhoft",  illegal  imprisonment  on  board 

of. 
Peterlioff,  part  cargo  of 

Do 

Do 

Do 

Peterhott',  shipper  per 

Peterhott,  part  cargo  of 

Do 

Peteriiott",  shipper  per 

Philo  Parsons 

Pride,  and  cargo 

Prince  Leopold 

Sally  Magee,  part  cargo  of 

•Siirah  Starr 


Scienct!,  owners  of. 


hir  William  Peel,  cargo  aud  ownors  of  .. 

Springbok,  cargo  of 

Springbok,  owners  of 

Sinibeam,  and  cargo 


Swifr,  and 


Templar : 

Time,  and  cargo 

Tristram  Shand v 

Tubal  Cain....'. 

Virgin,  part  cargo  of 

Volant,  part  cargo  of 

Volant,  owners  of 

Wanderer,  and  cargo 

Will  o' the  Wisp 

York,  owners  of 


Names  of  clainnmts. 


iNo. 


Saunders  &.  Sous 

E.  Harvey  el  al 

Ntizaire  Lt-niieux 

Richard  1',  iJnck  rx.  (Jreat  Britain.. 

Shand,  Higscsi-  &  Honlt 

Spencer  »fc  J.  Fleming 

.laint's  Wi'thcrell 

William  Almond 

Alfred  Wilson  el  al 

Wilson,  Bowles  &  Co 


'!» 


281 
214 
215 
13 
270 
405 
40(5 
407 
408 
409 
410 


Alfred  Lafone 411 

Charles  S.  Osborne  r/<(/ 412 

Anna  Lonch 413 


Frederick  Frost  et  al 

Thomas  P.  J^.istin 

James  Holgate 

S.  .Jarman  and  C.  F.  Smith 
Joiin  1 1.  Elsworth 


•1 


414 
415 
416 
417 
421 


Welch  &  Price 

Wilson  A  Armstrong 

Grant  &  Brodie 

Hine.Mnudella&.Co 

Ernest  Elsworth 

John  Elsworth  

Walter  Eastmi 

Robert  Sinclair  ctal 

Thomas  Edgley 

W.  O.  Ashley  rn.  Great  Britain 

Saunders  Si,  Sons 

H.  A.  McLcod 

Charles  (^'oleman 

Cow  lam  Graveley 

Thomas  E.  Angel  et  al 

Edwin  Gerard,  assignee,  iVc 

S.  Isaac  Camida^ll  A:  Co 

John  Riley,  for  Thomas  May 

Henry  Lafone  .'    John  T.  Lawrence 

Saunders  &  So. .4 

Thomas  B.  Wales  et  al.  (•«.Great  Britain . 

Saunders  it  Sons 

John  T.  Lawreiu'.e 

Amos  Bigland 

George  Wigg  and  Saul  Isaac 

E<lwin  (!(!rard 

John  Amy,  trnsti'C,  et  al 

Saunders  &,  Sons 

James  G.  A.  Creightcui  »fc  Co 

James  and  Richard  Martin 


422 
423 
424 
425 
42(5 
438 
439 
440 
441 

19 
281 
306 
232 
292 
391 
243 
316 
442 
389 
281 

18 
281 
431 
199 
271 
245 
388 
281 
378 
434 


D. 

Final  award  of  comrnhmrn. 

Office  op  the  IVIixed  Commission  on 
British  and  American  Claims, 
Under  the  Treaty  Ma\^  8,  187J, 
Neicpnrt,  li.  I.,  IScpteuiber  25,  1873. 

The  nndersigned  coinmissiouors  appointed  muU'r  the  twdf'th  article  of 
the  treaty  signed  at  Washington  on  the  eighth  day  of  jNIay,  one  thou- 
sand eight  hundred  aud  seventyoue,  between  the  United  States  of 


I' 
1 


RPf^ 


230 


AAIERICAN-BRITISH   CLAIMS    COMMISSION. 


to  Si, 


America  and  Her  Britannic  ^lajcsty,  «lo  now  make  their  "final  award" 
of  and  concerning  tixe  matteis  referred  to  them  by  said  treaty,  as  follows, 
that  is  to  say : 

We  award  that  the  Government  of  the  United  States  of  America  shall 
pay  to  the  government  of  Her  Britannic  Majesty,  within  twelve  months 
from  the  date  hereof,  the  sum  of  one  million  nine  hundred  and  twenty- 
uine  thousand  eight  hundred  and  nineteen  dollars,  in  gohl,  subject  to  the 
deduction  provided  for  by  article  sixteen  of  the  treaty  aforesaid,  for  and 
in  full  satisfaction  of  the  several  claims  on  the  part  of  corporations,  com- 
panies, or  private  individuals,  subjects  of  Uer  Britannic  Majesty,  upon 
the  Government  of  the  United  States,  arising  out  of  acts  committed 
against  the  persons  or  property  of  subjects  of  Her  Britannic  Majesty, 
during  the  period  between  the  thirteenth  day  of  April,  one  thousanil 
eight  iiundred  and  sixty-one,  and  the  ninth  day  of  April,  one  thousand 
eight  hundred  and  sixty-five,  inclusive  ;  said  sum  being  the  aggregate 
of  tlie  several  separate  awards  upon  su(;h  claims,  made  in  writing,  in 
duplicate,  and  signed  by  us  or  such  of  us  as  assented  to  said  separate 
awards. 

And  all  other  such  claims  on  the  part  of  subjects  of  Fler  Britannic 
Majesty  against  the  United  States  whi(!h  have  been  presente<l  and  pros- 
ecuted for  our  award,  have  been  and  are  hereby  disallowed  or  dismissed, 
in  manner  and  form  as  will  ai)pear  by  the  several  separate  awards  in 
writing  concerning  the  same,  signed  as  aforesaid. 

Certain  other  claims  on  the  part  of  subjects  of  Her  Britannic  Majesty 
against  the  United  States  were  also  j)r('sonte(l,  but  were  afterward,  and 
before  any  award  was  made  thereon,  witiidrawn  by  tlie  agent  of  Her 
Britannic  Majesty,  as  will  appear  by  the  recoid  of  the  proceedings  of 
the  commission,  kept  in  duplicate,  and  which  will  bo  delivered  to  each 
government  herewith. 

And  we  award  that  all  claims  on  the  i)art  of  corporations,  companies, 
or  private  individuals,  citizens  of  the  United  States,  upon  tiie  govern- 
ment of  Her  Britannic  Majesty,  arising  out  of  acts  committed  against 
tiie  i>ersons  or  property  of  citizens  of  the  United  States,  between  the 
thirteenth  day  oi  April,  one  thousand  eight  hundred  and  sixty  one,  and 
the  ninth  day  of  April,  one  thousand  eight  hundred  and  sixty-five,  in- 
clusive, not  being  claims  growing  out  of  the  acts  of  vessels  referred  to 
in  the  first  article  of  said  treaty,  have  l)een  and  are  hereby  disallowed ; 
separate  awards  ui)on  each  of  said  claims  having  been  made  in  writing, 
in  duplicate,  and  signed  by  us  or  such  of  us  as  assented  to  such  separate 
awards. 

And  we  refer  to  the  several  separate  awards  made  and  signed  as 
aforesaid,  as  a  part  of  this  our  final  award — it  being  our  intent  that  the 
proceedings  of  this  commission  shall  have  the  force  and  ett'ect  named 
and  provided  in  the  seventeenth  article  of  said  treatv. 

L.  COilTI, 

KUSSELL  GURXEY, 
J  AS.  S.  FRAZEU, 

Commissioners. 


B. 

Dissenting  oinnion  of  Mr.  Commissioner  Frazer  in  the  Calcutta  saltpetre 

cases.     fSee  p.  49,  ante.) 

These  cases  arise  out  of  certain  legislative  ordinances  of  the  governor- 
general  of  India,  dated  respectively  December  21, 18G1,  and  January  3, 


AGENT  S   REPORT. 


231 


1862.  By  the  first  of  these  ordinances  tlie  exportation  of  saltpetre  from 
India  was  proliibited  after  that  date,  except  to  Lon(h)n  and  Ijiverpool, 
in  Britisli  vessels,  under  penalty  of  confiscation  :  provUled,  that  tne  pro- 
hibition should  not  extend  to  cases  where  pertnits  to  expoit  \vm\ pre- 
vioiiHly  been  granted. 

By  thesecoiul  ordinance  theprovi  oof  the  first,  excei>tinp:  cases  where 
permits  to  export  had  been  granted  prior  to  December  21,  ISIJI,  wasre- 
scinde<l ;  and  the  article  was  recpiired  to  be  relanded  from  vessels  in 
port.  Tlu'  first  ordinance  was  also  so  modified  as  to  permit  tlu^  article 
to  be  exported  in  British  vessels  to  mui  port  in  the  United  Kingdom. 

In  the  case  of  Bush  et  al.y  the  vessel  Ikad  a  permit  to  export  the  salt- 
peter on  board  l)efore  the  date  of  the  first  ordinamje.  She  continued  to 
load  other  goods,  placing  them  upon  the  saltpetre ;  and  ln'ing  in  the 
port  of  Calcutta  when  tl»e  secoiui  ordinance  was  proclaimed,  she  was 
not  permitted  to  sail  as  laden. 

In  the  other  cases  the  saltpetre  was  laden  when  the  first  ordinance 
took  effect,  but  custom-house  permits  to  ex])ort  it  had  tiof  been  obtained. 
In  each  case  the  vessels  were  Ameri<!an  and  bound  for  the  United  States. 
They  were,  by  the  ordinances,  re<piired  to  unlade  the  saltix'tre  ;  l)ut  by 
special  arrangement  with  authorities  it  was  allowed  to  remain  on  boani, 
and  the  vessels  waited  until  the  ordinances  were  rescinded,  a  period  of 
nearly  two  months.  By  this  arrangement,  it  seems  that  less  injury  re- 
sulted than  would  liave  occurred  if  the  saltpetre  had  been  unladen. 
Damage  from  (heat  Britain  is  claimed  for  this  «letention. 

The  statute  of  24  and  25  Vict.,  ciiap.  07,  seems  to  have  authorized 
the  ordinances  in  question,  not  speeitic^ally,  but  by  reason  of  the  general 
power  of  legislation  which  it  conferred  on  the  authorities  in  India, 

Though  Her  Majesty  was  at  that  time  at  jieace  with  all  the  world,  yet 
there  existed  a  reasonable  apprehension  of  speedy  war  with  the  United 
States  on  a(;count  of  the  recent  arrest  of  Messrs.  Mason  and  Slidell  on 
boanl  the  royal  mail-steamer  Trent,  on  the  high  seas.  This  is  an  ele- 
ment of  importance,  establishing  tlu-.t  the  ordinances  of  the  governor- 
general  of  India  were  ])roclaimed,  not  wantonly,  but  as  an  exercise  of 
authority  with  a  view,  ho}ia  fide,  to  ju'otection  and  self-defense,  when 
the  danger  of  war  seemed  probable. 

A  diplomatic  correspondence  concerning  these  claims  ensued  between 
the  two  governments.  The  facts  were  not  controverted ;  but  (^oiuH'din  x 
them,  the  British  government,  a<lvised  by  the  law-otticers  of  the  Crown, 
(lenie«l  all  liability,  while  the  American  (Jovernment  very  positivefv  as- 
serted it.  This  alone  imparts  importance  to  the  (piestion,  and  suggests 
that  it  should  receive  the  most  careful  c'Misideration. 

1.  In  the  absence  of  treaty  stipulations  relating  to  the  subject,  it  is 
claimed  that  the  facts  constitute  a  just  foundation  for  a  claim. 

2.  That  the  treaty  of  July  3,  181"),  was  violated  ;  and  therefore  there 
arises  a  national  liability  for  damages. 

If  the  case  is  within  the  treaty  of  ISlo  it  is,  of  course,  immaterial  to 
determine  what  should  be  our  award  in  the  absence  of  treaty  stipula- 
tions. By  the  convention  of  August  0,  1827,  that  of  1815  was  contin- 
ued indefinitely,  terminable  on  one  year's  notice,  which  was  never  given. 
Tliis  was  before  the  statute  24  aud  25  Vict.,  though  I  do  not  deem  the 
fact  important. 

If  by  treaty  the  British  government  contracted  not  to  do  that  wliich 
before  it  might  lawfully  and  without  liability  have  done,  it  cannot  after- 
ward break  its  contract  without  a  just  liability  to  answer  for  the  conse- 
quences, f 


ft"  -K' 


ii 


tl 


I'M 


■.  ■-■•»! 


"I 


1  -il^ 


'"ir^i"" 


f 


II'  n 


232 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


I<:     ^ 


ill 


■  .1 


i: 


Was  there,  then,  a  contract  by  treaty,  by  the  terms  of  which  Great 
Britain  engnpnl  not  to  «h)  the  thinj;s  Cduiphnnod  of? 

By  the  tliinl  article  of  the  treaty  of  1815,  His  Britannic  Majesty  agreed 
that  citizens  of  the  United  States  niijiiht  "freel.v  carry  on  trade 
between  Cahjutta,  Madras,  Bombay,  and  Prince  of  Wales  Island,  and 
the  tJnited  States,  in  all  articles  ol  which  the  importation  and  exporta- 
tion to  and  from  the  said  territorieH  shall  not  be  entirely  i>roliibited." 
The  "said  territories"  can  only  mean  Calcntta,  Madras,  Bombay,  and 
Prince  of  Wales  Island  ;  for  those  only  were  the  territories  ])reviously 
mentioned.  To  carry  j(oods  from  Liverpool,  or  elsewhere  in  the  United 
Kingdom,  to  Calcutta  for  sale,  would,  it  can  hardly  be  questioned,  be 
au  importation  to  "  said  territories  "  in  the  sense  of  the  treaty  ;  so,  then, 
as  long  as  the  importation  of  a  given  article  from  Liverpool  to  Calcutta 
was  not  prohibited,  it  might  also  be  imported  from  New  York  by  citizens 
of  the  United  States.  In  short,  American  merchants,  by  that  article  of 
the  treaty,  acquired  the  liberty  to  compete  with  British  merchants  in 
supplying  the  markets  of"  said  territories^'^  This  is  the  natural  import 
of  the  language;  and  if  these  claims  arose  out  of  similar  interference 
with  American  importations  to  Calcutta,  say  the  i)rohibition  to  unlade  an 
American  cargo  under  a  like  ordinance,  i)roclaimed  after  the  arrival  of 
the  vessel  at  Calcutta,  I  can  scarcely  conceive  that  a  demand  for  redress 
wouhl  be  denie<l  bj'  Her  Majesty's  government.  I  think  that  in  such  a 
case  the  language  of  the  treaty  would  be  cleemed  too  plain  to  admit  of 
construc/tion.  And  I  cannot  but  think  that  as  to  importations  to  '-''f^nkl 
territories,"  that  language  expresses  the  exact  intention  of  the  high 
contracting  parties. 

As  to  erportations,  it  is  not,  I  think,  fairly  susceptible  of  controversy 
that  the  literal  import  of  the  language  used  conce<les  to  American  citi- 
zens rights  exactly  coextensive  with  those  which  relate  to  importations. 
If  not  to  prohibit  the  carrying  of  an  article  from  Liverpool  to  the  market 
of  Calcutta  is  to  allow  that  article  to  be  imported  to  Calcutta,  in  the 
sense  of  the  treaty  ;  though  it  seems  to  me  plain  that  not  to  i)rohibit 
the  carrying  of  saltpetre /VoMt  Calcutta  to  Liverpool  is  to  allow  saltpetre 
to  be  exported/VoMi  Calcutta.  In  other  words,  by  the  plainest  language 
that  could  iu)sisibly  have  been  en)ployed,  the  quoted  words  of  the  treaty 
concede  to  the  United  Slates  a  right  to  export  and  import  from  or  to 
"those  territories"  alike,  unless  either  as  to  specified  articles  shall  be 
prohibited  entirely,  which  is  not  done  if  exports  be  allowed /row  "those 
territories,"  or  if  imports  be  allowed  to  "those  territories." 

The  question  remains,  vvas  the  taking  of  saltpetre  from  Calcutta  to 
Liverpool  an  exportation  of  that  article  from  Calcutta  in  the  sense  of 
the  treaty  ? 

It  is  admitted  in  the  intelligent  argument  of  Her  Majesty's  counsel 
that  in  some  sense  the  carriage  of  an  article  from  Calcutta, "  whether  to 
a  port  in  the  United  Kingdom  or  to  a  foreign  port,  is  an  exportation,''' 
nor  can  this  be  questioned  philologically.  The  word  itself  includes  the 
former  as  well  as  the  latter,  whether  reference  be  had  to  its  strict  sense 
or  its  popular  use.  For  ])roof  of  this  use,  indeed,  it  is  only  necessary  to 
refer  to  the  very  ordinances  complained  of  in  these  cases,  in  both  of 
which  the  word  is  several  times  used  in  that  very  sense,  aiul  certainly 
without  improi)riety.  It  is  also  used  by  Earl  Russell  in  the  same  sense, 
in  his  (correspondence  with  Mr.  Adams  concerning  these  claims.  It  is 
also  used  in  the  statute  laws  of  both  countries,  as  well  to  indi(;ate  the 
carrying  of  goods  from  distant  colonies  or  possessions  as  from  coun- 
tries wholly  foreign. 


F 


AGENT  .S    KEPORT. 


233 


So  mu»!li  for  the  mere  words  of  the  tre.ity.  Lookinjj  only  nt  the  laii- 
fjiiage  (iiioted,  the  eonehision  woiihl  seem  to  be  that  Crreut  liritaiii  en- 
gaged by  the  treaty  to  permit  citizens  of  tiie  United  States  to  export 
from  Cahmttta  to  the  United  States  such  artieh's  as  she  slioidd  permit 
to  be  exporttid  to  the  United  Kingdom  or  any  other  phice ;  /.  c,  the  ex- 
portation of  \vhi<!h  shouhl  not  be  ^'' entirely  prohibit(Ml."  IJnt  tlie  words 
of  a  treaty  must  be  construed  witli  reference  to  tlieir  subject-matter,  so 
as  to  forward  the  intent  of  the  high  contractin^j  parties,  and  not  de- 
feat it,  and  so  as  to  avoi«l  absurd  results. 

Now,  the  intent  of  the  third  article  of  the  treaty  of  1815  undoubtedly 
was  to  give  to  the  United  States  the  lil)erty  of  direct  trade  with  the 
places  mentioned  in  the  East  Indies;  so  that  Americans  might  purchase 
and  sell  there,  and  with  their  own  ships  transport  goods  to  and  from 
their  own  country,  from  and  to  those  phutes.  The  nns(!hief  sought  to  be 
remedied  was  that  the  United  States  GovernnuMit  was  previously  obliged 
to  supplj'  herself  with  the  products  of  those  places  at  second  haml  in 
the  markets  of  Great  Britain,  and  could  oidy  exchange  her  products  with 
them  through  the  same  indirect  channel. 

Now,  it  must  be  seen  at  once  that  if  the  British  government  reserved 
to  itself  the  right  asserted,  (continuing  herself  to  trade  there,)  then  the 
concession  which  seemed  to  be  made  was  a  mere  delusion  and  snare  to 
Ameri(;an  merchants,  giving  no  right  which  Great  Britain  might  not 
withdraw  at  any  moment  with  advantage  to  her  own  merchants  at  home. 
In  short,  she  could  at  will  resume  the  entire  monopoly  of  the  trade  with 
her  East  Indian  posessions;  for  it  must  be  borne  in  mind  that  the 
language  under  consideration,  by  virtue  of  whic^h  it  is  contended  that 
the  ordinances  in  question  can  be  justified,  applies  (juite  as  well  to  all 
other  commodities  as  to  salti)etre,  and  to  imports  as  well  as  to  exports. 
\^  treaty  stii)ulation  with  such  a  meaning  would  be  worse  than  an  utter 
uivjlity. 

There  are  some  other  clauses  found  in  this  article  of  the  treaty  which 
need  to  be  considered.  There  is  the  clause  usual  in  commercial  treaties, 
which  makes  citizens  of  the  United  States  tradingin  those  places  '^subje(!t 
in  all  respects  to  the  laws  and  regulations  of  the  Britsh  government  from 
time  to  time  established."  Of  this  it  is,  perhajKs,  suliicient  to  say,  that  it 
cannot  be  supposed  that  such  a  clause  is  a  reservation  ot  authority  to  pro- 
hibit the  very  trade  which  it  was  the  leading  purpose  of  the  article  to 
allow.  In  the  language  of  Earl  liussell  concerning  the  same  clause,  in 
the  first  article  of  the  treaty,  (letter  to  Lord  Lyons  of  December  17, 18(12,) 
"it  does  not  mean  that  the  principal  engagement  itself  may  be  nullified, 
or  may  be  rendered  illusory  either  in  whole  or  in  ])art  *  #  * 
but  merely  that  obedience  is  to  be  rendered  by  foreign  traders  *  * 
to  all  the  laws  and  statutes  euacted  *  *  for  tlie  ordinary  and  le- 
gitimate purposes  of  internal  government  and  administration.  *  * 
I  have  to  observe  (he  adds)  that  it  is  a  well-known  maxim  that  treaties 
are  to  be  interpreted  in  good  faitli,  and  in  such  a  manner  that  they  may 
have  their  effect  and  not  be  rendered  vague  or  illusory."  And  Mr.  Sew- 
ard's reply  (letter  to  Lord  Lyons  of  January  9,  1803)  contains  a  virtual 
admission  of  the  correctness  of  the  princii)le  so  well  stated  by  Earl 
liussell. 

It  may  be  added  that  it  is  impossible  to  perceive  the  force  of  the  ar- 
gument that  a  year's  notice  should  be  given  to  terminate  the  treaty, 
if  it  was  provided  that  it  could  be  effectually  nullified  by  one  of  the 
parties,  at  will,  by  an  act  of  legislation. 

But  there  remains  a  consideration  of  much  greater  weight,  as  I  think. 


1! 


T^-i 


234 


AMERICAN-nRITISII    CLAIMS   COMMISSIOX. 


than  those  wliicJi  have  bcon  iilhidod  to  iibovc.  Solt'-piosprvation  and 
self-ch'Tciise  art;  nacivd  iij,'lits  of  nations  as  well  as  of  individuals;  and 
nothinj;  in  a  treaty  should  hv  taken  to  have  impaired  the  riy:ht  of  a  na- 
tion to  make  jtrndent  preparations  for  them  hy  hnshiindinj;  its  means  of 
war,  >vhen  that  event  seems  prol)al)Ie,  unless  the  terms  of  the  stipulation 
will  admit  of  no  other  eonstruetion. 

TiM're  is  a  i)rovision  in  the  article  under  consideration  which  shows 
clearly  that  the  exifjency  ()f  possible  war  was  distin(;tly  in  mind  wh»Mi 
tlu'  treaty  was  concluded.  Indeed,  such  were  the  events  then  existiii^ 
in  the  history  of  both  counties  that  it  would  have  been  remarkable  if  it 
bad  not  been.    The  provision  is  in  those  words : 

rrovidcd  only  that  it  sliall  not  he  lawful  for  tlicin,  (citi/i'iiH  of  the  United  States,) 
in  any  tinu'  of  war  hctwcrn  the  HritJHh  <j;ovcrnint'nt  and  any  state  or  ]»ower  wliatevcr, 
to  ex)Mirt  from  tlie  said  territories,  witliout  the  special  permission  of  the  British  gov- 
ernment, any  military  storeiH  <»r  naval  stores,  or  rice. 

This  exception  to  the  fjt'neral  liberty  to  trade  conceded  before,  is  free 
from  all  ambiouity.  That  it  covers  only  the  (lase  of  actual  war, 
shows  most  clearly  that  it  was  not  deemed  important,  and  was  not 
intended  to  make  any  reservation  for  the  case  of  war  merely  iipi)re- 
liended.  The  one  thin*-'  beinj'-  expressed,  all  else  is  excluded.  E.rpressio 
unius  est  cxclusio  alteviun.  This  maxim  of  interpretation  is  sensible  and 
sound,  and  I  think  never  was  more  a|)plicable  in  any  case  than  here. 

If  1  have  correctly  int<'rpreted  the  treaty,  then  it  is  of  no  consetpience 
whatever  that  the  ordinances  applied  to  all  nations  alike.  A  s|)ecilic 
enf^iifiement  delinitein  its  terms  can  be;  I'ullilled  only  by  the  nertbrmance 
of  it  in  all  its  substantial  i)arts.  It  is  not  to  la;  contbunded  with  an 
engaj;ement  to  extend  only  the  privileges  which  shall  be  allowed  to 
other  powers  or  to  the  most  favored  nation. 

These  considerations  seem  to  me  to  establish  very  clearly  the  valid- 
ity of  these  claims,  and  1  am  of  opinion  that  damages  should  be  awarded 
accord  ingij-. 


r. 


Mr.  Comniimoner  Frazer\s  (liNxcntinfiopiivon  in  the  cane  of  ITenry  Hender- 
son vs.  United  IStatea.     No,  410.     8ee  p.  -ii),  ante. 

Henderson,  in  whose  behalf  Great  Britain  makes  this  claim,  is  a  Brit- 
ish subject  by  birth,  and  has  taken  no  steps  toward  becomuig  natural- 
ized in  this  or  any  other  country.  lie  became  domiciled  near  Port 
Hudson,  in  the  parish  of  West  Feliciana,  in  1850,  employed  in  cultivating 
and  dealing  in  cotton,  and  has  ever  since  resided  there.  There  is  no 
room  to  doubt  that  it  was  his  voluntary  and  pernmnent  domicile.  It  is 
not  even  alleged  that  he  maintained  a  personal  neutrality  during  any 
period  of  the  rebellion,  and  there  is  no  [)roof  whatever  of  that  fact.  In 
June,  1803,  he  owned  in  the  neighborhood  of  112  bales  of  cotton.  After 
twenty-seven  day.s  of  effort  by  continuous  fighting.  General  Banks,  com- 
manding the  United  States  forces  investing  the  fortified  town  of  Port 
Hudson,  held  by  the  rebels,  found  himself  unable  to  carry  the  works  by 
assault,  and  thereupon  commenced  a  regular  siege  of  the  place.  Cotton 
found  in  the  neighborhood,  including  Henderson's,  was,  without  discrim- 
ination, seized  by  the  United  States  forces,  and  used  almost  exclusively 
in  the  construction  of  fortifications,  a  purpose  to  which  cotton  in  bales 


AGENT  S    REPORT. 


235 


is  known  to  be  well  adjiptod  in  tlie  eniorficncics  of  u  siege.    The  olllicor 
who  took  Henderson's  cotton  j;iive  papers  as  follows: 

I{c(fiv('(l,  Hicnvt'iMio  itlaiifiifKiii,  West  liOiiiiHianii,  from  tint  |)liUitiitioii  of  Jed.  0. 
Smitli,  lU'lyoiii.'  (")l)  biilt's  olcDtloii,  l»y  order  ot'L'ol.  S.  U.  Ilnlaliiril :  Mfi/.cd  liy  ordnr. 

T.  K.  I't'i,i.i:ij, 
C'apt.  Sevi'iitu-Jl/th  X.  Y.  lulu.,  A.  .1.  Q.  M. 
Jink  10,  1803. 

.Tixi.  1'-',  lH(a 
I  liiivc^  takt'ii,  by  ord<ir  of  Col.  S.  H.  Iloliibird.  for  tlio  Uiiitcd  Statfs  (»ovnniiiu>iit, 
\'A:\  balt'H  of  cotton  from  tlirCarniiiiii  idantatioii,  Wost  hoiii.siuna. 

(Sijjiifd  as  above.) 

The  fortilications  and  works  of  the  l)esi(^}jers  were  extensive,  beinjij 
equal  to  a  continous  line  of  over  seven  miles.  After  the  fall  of  I'ort 
Hudson,  the  cotton  was  jijaMiered  up.  cleaned,  and  sold,  and  the  proceeds 
applieil  to  the  use  of  the  trooj)s  of  the  Unite<l  J)tates. 

Under  these  facts  the  majority  of  the  commission  determine  that  Hen- 
derson has  a  valid  claim  against  the  United  States  for  the  vahu^  of  his 
cotton,  and  an  award  is  made  in  favor  of  (Jreat  Britain  accordinj^ly. 

I  cannot  Join  in  this  award,  and  the  principles  of  j)ul)lic  law  involved 
ill  it  and  contravened  by  it,  seem  to  me  so  very  important  and  so  well 
sett'ed,  that  I  feel  it  my  duty  respe(!tfully  to  state  the  reasons  which 
coiitiol  my  action  now  and  may  control  it  in  other  cases. 

1.  That  aforei<;iierdoinicile(l  in  the  United  States,  voluntarily  remain- 
ing? in  a  hostile  part  of  it,  in  rebellion  ajjainst  it,  that  i)ait  reco^^nized 
by  the  country  of  his  orioin  as  a  belligerent,  thus  (ihoosinj;  to  trust  him- 
self to  its  protection,  thus  being  in  law  an  enemy  of  the  United  States, 
without  even  pretending  that  he  was  in/act  neutral,  may  be  recognized 
as  entitled  to  maintain  a  claim  against  it  for  projx'rty  appropriated  by 
its  invading  armies,  when  no  citizen  of  the  United  States  could  under 
like  circumstaiK^es  claim  such  consideration,  is  a  proposition  to  which  I 
iiiust  enter  an  earnest  and  emphatic  dissent.  If  it  lias  any  support  iii 
equity.  Justice,  or  the  public  law,  then  I  am  greatly  in  error. 

2.  The  cotton  was  the  i)roperty  of  an  enemy  of  the  United  States,  so 
recognized  by  every  writer  uiion  international  law,  and  so  held  by  all 
tribunals,  both  American  and  British  as  well  as  continental,  in  every 
reported  case  involving  the  question.  The  mixed  commission,  consti- 
tuted under  the  convention  of  JSoG,  between  the  two  countries,  so  held  in 
Laurent's  case.  Indeed,  it  went  further,  and  held  that  an  unnaturalized 
Englishman  voluntarily  domiciled  in  a  country  at  war  with  the  United 
States  was  not  even  to  be  regarded  as  a  Britis'i  subject ;  thus  going 
a  little  too  far,  as  I  think. 

The  property  of  Henderson  was  as  liable  to  capture  as  the  proi)erty 
of  Jeft'.  Davis  himself,  or  any  rebel  in  arms.  I  believe  this  is  not  (pies- 
tioiied.  That  the  proi)erty  itself  was  a  i)roper  subject  of  capture  on  land 
under  the  modern  rules  by  which  civilized  nations  goveru  themselves 
in  war,  seems  to  me  to  be  quite  as  clear. 

The  legislation  and  the  known  practice  of  the  rebel  Minorities  made 
it  so.  They  made  cotton  the  basis  of  their  public  creaa  by  a  policy 
which  aimed  to  deal  largely  in  it  on  government  account,  to  purchase 
it  even  before  it  wa*  grown,  and  hypothecate  it  as  security  for  the  pay- 
ment of  loans,  with  the  proceeds  of  which  they  did,  to  a  large  extent, 
supply  themselves  with  arms  and  munitions  of  war,  and  with  a  fleet  of 
armed  vessels  to  infest  the  ocean  and  destroy  American  commerce. 
They  committed  it  to  the  flames,  whether  owned  by  friend  or  foe,  rather 
than  permit  it  to  reach  the  markets  of  the  world  otherwise  than  through 
their  own  ports;  thus  endeavoring  by  warlike  operations  to  secure  to 


u 


'•'■■'■I 


-ii 


23G 


AMERICAN-BRITISH   CLAIMS   COMMISSION. 


i'|f 

1'' 


m 


tliemselvps  a  monopoly  in  supplyinj;  the  foroign  donmnd,  tlmt  tlioy 
ini^lit  thereby  constrain  nations  ahroiul  to  aid  them  in  their  strnyfjie. 
In  short,  cotton  was  a  special  and  t'ormi(hil)le  fonmhition  of  the  rebel 
military  power.  It  was  more  important  than  arms  or  ships  of  war,  fur 
it  snpplied  these  and  all  else  beside.  It  was  moie  potent  than  gold, 
for  it  not  only  comiiumded  gold,  but  it  lar}i;e!y  enlisted  in  behalf  of  the 
rebels  the  interests  of  foreij^ners  whose  inannfacturin}?  Industry  wa.s 
in  a  measure  paralyzed  because  this  staple  was  needed  to  keep  it  in 
motion.  The  nei^essities  and  purposes  of  war,  therefore,  recpiired  its  cap- 
ture at  every  opportunity  more  imperatively  than  the  capture  of  muni- 
tions and  imidements  of  war;  indeed,  that  ne(!essity  was  <piite  as  press- 
ing; and  certainly  as  humane  as  the  killing'  of  men  in  battle;  for  it  was 
no  less  eiticient  as  a  means  of  ac(romplishin}v  the  subjugation  of  the 
rebel  armies,  and  reestablishing  the  national  authority.  It  is  to  me 
astonishing  if  there  is  a  ditteren<re  of  opinion  upon  this  subject. 

The  Supreme  Court  of  the  United  States,  recognizing  to  the  fullest 
extent  all  the  limitations  which  the  practice  of  nations  has  lately  en- 
gralted  upon  the  right  of  capture  upon  land,  so  held  in  the  case  of  ,i 
loyal  American  widow.  (Seethe  caseof  Mrs.  Alexander's  Cotton,  2  Black.) 
This  is  high  authority,  especially  when  it  is  remembered  that  that  au- 
gust tribunal  has  certaiidy  exhibited  no  tendency  whatever  to  give 
undue  license  to  military  authority  or  warlike  operations.  Con)plaint, 
if  any,  has  been  altogether  in  the  other  direction.  But  I  would  be 
quite  content,  in  the  absence  of  any  authority,  to  trust  the  question 
with  the  common  sense  of  all  civilized  nations  so  long  as  war  in  any  form 
shall  be  recognized  as  a  lawful  method  of  deciding  differences.  If  the 
capture  was  rightful  by  the  laws  of  war,  it  would  l)e  a  novelty  in  inter- 
national law  that  its  exercise  involves  an  obligation  to  make  compensa- 
tiou. 

3.  But  another  point  remains,  which  in  my  judgement  is  p'  utely 
conclusive  agaisnt  any  award  on  account  of  this  claim,  if  th  s  of 

international  law  should  control  the  determination  of  the  question.  Hen- 
derson was  voluntarily  and  permanently  domiciled  in  one  of  the  rebel- 
lious States,  the  territory  held  by  the  so-called  Confederate  States  recog- 
nized by  Great  Britain  as  a  belligerent.  By  that  act  of  recognition  all 
British  subjects  were  bound.  If  they  chose  to  remain  in  that  part  of 
the  world,  they  voluutaiily  took  the  chances  of  war  and  intrusted  their 
interests  to  the  protection  of  that  organization.  They  must  look  to 
it  for  protection  from  the  results  of  war;  and  now  that  it  has,  by  the 
fortunes  of  war,  been  extermimited,  the  country  of  their  origin  has  no 
right  (save  possibly  in  exceptionally  flagrant  cases)  to  intervene  in  their 
belmlf  as  against  the  United  States  for  indemnification.  This  I  think 
is  as  clearly  established  as  a  rule  of  international  law  as  anything  can  be. 
It  was  so  held  in  Laurent's  case,  supra.  It  was  so  declared  by  the  Amer- 
ican Secretary  of  State  in  reference  to  the  bombardment  of  Greytowu. 
and  was  then  assented  to  by  the  English  government  under  the  advice 
of  the  law-officers  of  the  Crown.  The  Attorney-General  on  that  occasion 
declared  in  I'arliament  that  every  jurist  odmitted  it.  He  said  "the  prin- 
ciple which  governed  such  cases  was  that  the  citizens  of  foreign  states 
who  resided  within  the  arena  of  war  had  no  right  to  demand  compensa- 
tion from  either  of  the  belligerents."  (See  Wheat.  Int.  Law,  173 — note 
by  Lawrence.)  This  rule  is  so  much  in  the  interest  of  the  peace  of  na- 
tions that  it  should  be  steadfastly  maintained.  A  right  to  interfere  is  so 
intimatelj'  associated  with  the  duty  of  doing  so,  that  any  relaxation  of 
this  i)rinciple  would  but  multiply  occasions  of  war  and  afford  too  many 
opportunities  for  that  armed  intervention  in  the  quanels  of  others  which 
is  sometimes  sought,  in  vain,  by  ambitious  rulers. 


AGEN'rS   REPORT. 


237 


o. 

Opinion  of  Mr,  CommiHsioner  Frnzcr  in  uhuniloneil  an<f  voptured  propcriy 
cuHCH,  No.  lilii),  undotherH.     {Sec  p.  41>,  ante.) 

TliP  cjipture  or  (U'stiiictioii  of  property  on  land  helonjiin};  to  individnul 
ftiK'iiiies  isjiistitled  by  tlit'  modern  law  of  nations,  if  {Uviv.  be  military 
reasons  for  it ;  in  tlie  abscniie  of  •••ood  niilitaiy  reasons  such  (laptures  are 
jr«'iierally  witiiout  tiie  support  of  tiie  puldie.  law.  When  su(;h  reasons  do 
exist,  sueh  capture  or  destruction  is,  in  the  nature  of  things,  (piite  as 
proper  as  the  capture  or  destruction  of  smth  property  on  the  high  seas. 

The  latter  is  maintained  because  nn  enemy's  commerce  and  navigation 
are  "the  sinews  of  his  naval  power,"  to  take  or  destroy  which  is,  there- 
fore, a  legitimate  act  of  war.     (Wheat.  Int.  Law;  Lawren(!e,  (JlMJ.) 

"The  si  tews"  ot  liisw* ////«»•»/ i»ower  on  land  must,  in  view  of  the  natural 
law,  be  equally  the  subject  of  capture  or  destriu;tion  by  an  invading 
army.  Cotten  was  held  to  be  such  by  the  Supreme  Court,  in  the  case 
of  ."\irs.  Alexj  nder's  cotton,  {2  Wall.,  KH.)  The  reasoning  of  the  opij'ion 
of  the  Chiel  Justice  in  that  case  is,  1  think,  unanswerable. 

The  war  of  iie  American  rebellion  was  a  <'ivil  war — an  immense  one, 
too,  aad  the  G  ivernmi'iit  had  all  the  rights  of  war  whi<!h  it  would  have 
lia(l  it  its  enemy  had  l)een  an  iiulependent  nati()n.  Even  the  rel)»'l  orga- 
nization was  re«  ognized  l>y  Her  Majesty's  gov^'rnment  as  a  belligerent, 
(.  ('.,  having  the  rights  of  war;  and  (rertainlv  that  governnuMit  is  ther«'by 
estopi»ed  fiom  denying,  an«l,  indeed,  never  has  denie«l,  that  belligerent 
rights  also  belonged  to  the  Government  of  the  United  States.  Every 
act  of  war  recognized  as  lawfid  l)y  the  publico  law  between  independent 
states  at  war  was,  theietbre,  lawful  on  the  juirtof  the  United  States,  and 
involved  no  cause  for  reclamation  on  thepaii  of  neutrals.  On  this  ground 
only,  as  a  lawlul  belligeient  act,  could  a  blockade  be  maintaine<l.  The 
subject  is  discussed  very  fully  by  the  Supreme  Court  in  the  IMi/e  Cas«'s, 
1!  iSlack  ;  and  1  think  the  reasoning  of  that  court  is  conclusive. 

Neutral's  prtijx'rty  in  the  eiu'my's  territoiy  stands  e.\a<!tly  on  the  same 
footing  as  any  other  property  Ibund  there.  Indeeil,  a  neutral  domii'iled 
there  is  an  enemy  in  view  of  the  public  law.  He  may  be  compelled  to 
serve. the  enemy  as  a  soldier  even,  and  his  property  must  contribute 
to  the  support  of  the  enemy's  hostile  operations  without  reference  to 
bis  national  character.  1  think  that  all  authorities,  JJiitish,  conti- 
nental, and  American,  are  in  accord  ujion  the  luoposition  that  the  bellig- 
erent right  of  capture  of  movable  property  on  land  is  in  no  respect 
atfected  l>y  the  nationality  of  its  owner. 

Whatever  is  lawfully  done  in  the  exercise  of  belligerent  rights  can- 
not involve  any  liability  contemplated  by  the  treaty;  it  cannot  [tossibly 
be  a  tort. 

The  belligerent  right  of  capture  must  not  be  confounded  with  the  right 
of  eminent  domain,  which  is  a  civil  right  exercised  in  virtcu'  of  sover- 
ereignty.     The  two  are  wholly  distinct  and  rest  upoij  different  grounds. 

Grant's  case,  (C.  CIs.,  1803,)  cited  by  Her  Uritannic  ]Majest.\'s  counsel, 
was  not  a  destruction  of  enemy's  property;  it  was  not  in  the  enemy's 
lines,  nor  in  a  seceding  State.  It  was  a  destruction  of  prt)perty  iu 
Arizo,  within  actual  possession  of  the  United  States,  to  prevent  its  fal- 
ling into  the  enemy's  hands,  and  by  the  (Jonstitutiou  of  the  United 
States  compeusatiou  for  it  was  secured,  and  this  only  did  the  court  de- 
cide. 

But  are  we  to  be  told  that  the  Governnieut  of  the  United  States  is 
compelled  by  its  Constitution  to  pay  its  rebellious  citizens  for  their 


tip 


f 


238 


AMERICAN-BRITISH    CLAIMS   COMMISSION. 


';■'* 


property  destroyed  as  a  lawful,  hell i(/c rent  act  ?  Has  its  Constitution 
thus  tied  its  hands  as  against  a  rebellion  ?  JMi{>ht  the  rebels,  without 
liability,  exercise  all  recognized  belligerent  rights  against  it,  including 
the  capture  of  the  ))roperty  of  British  subjects  found  in  the  loyal  States, 
and  yet  ic  do  the  like  only  subject  to  the  (luty  of  making  compensation  ? 

From  all  this  absurdity  theie  is  no  es('ape  if  the  belligerent  right  of 
capture  and  destruction  shall  be  conlbunde«l  with  the  sovereign  right 
of  eminent  domain.  And  indeed  captures  on  the  high  seas  must  then 
go  into  the  same  general  category. 

In  Hiu',  a  constitutional  provision — the  condition  of  compensation  for 
property  taken  for  i)ublic  use — intended  only  to  restrain  civil  adminis- 
tration, would  be  held  to  so  trimmel  belligerent  rights  in  time  of  civil 
war  that  ett'e(;tive  hostilities  against  rebels  might  sometimes  be  practi- 
cally impossible. 

Now,  Congress  saw  that  the  full  exercise  of  the  belligerent  right  of 
capture  on  lund  was,  as  to  cotton  esiiecially,  of  the  greatest  military 
importance,  and  that  such  capture  would,  therefore,  be  extensive,  and 
that  it  would  fall  alike  on  the  loyal  and  the  disloyal  citizen,  and  also 
upon  foreign  residtMits  in  the  South  who  had  not  actually  violated  any 
duty.  It  was  a  generous  policy  to  mitigate  calamities  which  a  war  thus 
lawfully  conducted  would  nevertheless  impose  upon  i)ersous  guilty  of 
no  actual  wrong.  If  the  capture  was  a  lawful  act  of  war,  to  restore  a 
portion  ot  the  procee<ls  would  bean  act  of  grace  and  generosity  constitut- 
ing no  foundation  for  a  claim  for  nu)re ;  and  if  a  paiticular  nu»Je  was  at 
the  sanu'  tiuu^.  provided,  whereby  this  partial  restitution  might  be  sought, 
that  nu)de  only  could  be  resorted  to.  The  right  generously  given  and 
the  mode  of  seeking  it  must  go  together. 

The  act  concerning  cai>tiired  and  abandoned  property,  allowing  loyal 
persons  to  recover  in  the  Court  of  Claims,  was  just  tliis  act  of  grace. 
(Anderson's  case,  0  Wall.,  50.) 

My  conclusions  are : 

1.  Capture  of  cotton  of  British  owners  within  the  rebel  territory  was 
not  wiongful  by  interiuitional  law. 

2.  It  was  not  wrongful  under  the  jvct  of  Congress. 

3.  It  was  a  belligerent  right,  and  not  the  civil  and  sovereign  right  of 
eminent  donuun. 

4.  Without  the  act  of  Congress  no  compensation  was  due. 

5.  Oidy  such  liability  as  the  act  of  Congress  imposes  exists,  and  it 
must  be  sought  in  the  mode  prescribed  by  the  act. 

Again,  it  is  a  principle  of  international  law  established  by  the  i)rac- 
tice  of  ail  civilized  states,  and  sanctioned  by  every  consideration  of  ex- 
pediency and  justice,  that  where  a  nation  has  provideiJ  an  ade(p)ate 
municipal  remedy  by  judicial  pi'oceedings  for  wrongs  done  by  it  to  tbi- 
eigners  dumiciled  within  its  jurisdiction,  as  well  as  to  its  own  subjects, 
no  intei  national  rechunaticm  can  be  nuide,  at  least  until  this  municipal 
remedy  has  been  exhausted. 

Upon  this  princi[>le,  also,  thi;<  commission  shouhl  make  no  award  in 
this  class  of  cases.  The  Cimrt  of  Claims  was  open  to  these  claimants, 
with  jurisdiction  to  give  them  reasimable  con»i>ensation  for  (;aptui«'s  of 
cotton.  Tiiere  citizens  of  the  United  States  must  go  for  relief  within 
the  tinu^  limited  by  act  of  Congress;  and  1  cannot  assent  to  the  propo- 
sition that  domiciled  aliens  have  a  better  claim  than  citizens. 

1  would  not  be  understood  to  hold  that  the  right  of  capture  of  enemy's 
property  ou  land,  as  recoguizetl  in  re<!eut  tinu's,  is  t'ls  broad  as  it  is  at 
sea.  The  military  reason  for  it  must  be  more  palpable  and  immediate. 
There  is  a  remote  possibility  that  to  tako  the  lives  of  uou-combatauts— 


agent's  report. 


239 


onstitutioii 
Is,  without 
:,  iiu'liuliug 
>,yal  States, 
pensiitioii  ? 
lit  .vij;lit  of 
reign  ii<;iit 
must  thtMi 

risation  for 
il  adniinis- 
mo  of  civil 
5  be  practi- 

nt  ri<»:lit  of 
it  military 
I'lisivc,  and 
II,  ami  also 
ioiaiL'd  any 
a  war  tiiiis 
IS  S'l'lty  "t" 
o  restore  a 
y  constitiit- 
lo^'e  was  at 
be  80 11  gilt, 
given  aiul 

>wing  loyal 
t  of  grace. 


■ritory  was 
gn  right  of 

ista,  and  it 

r  the  i)rac- 
tion  of  ex- 
1  adequate 
►y  it  to  tor- 
n  subjects, 
municipal 

o  award  in 
claimants, 
!aptiii'es  of 
lief  within 
the  propo- 

of  enemy's 

as  it  is  at 

Immediate. 

ibatauts— 


enemies — may  wealven  the  enemy,  for  these  might  be  forced  into  the 
armies  of  the  enemy;  so,  too,  as  to  an  indiscriminate  capture  or  de- 
struction of  private  i)roperty.  l>iit  all  this  is  condemne<'  '  y  the  modern 
law,  and  1  would  shudder  to  countenance  a  revival  of  practices  so  hor- 
rible. 

I  admit,  too,  that  there  may  be  difficulty  in  defining  the  j)re(!ise  limits 
of  the  right  of  capture  on  land.  It  cannot  be  doubted  that  it  'iiay  be 
as  broad  ami  general  as  the  practice  oi  (iie  enemy  in  that  regard:  for 
retaliation  is  fully  justified  by  institutional  writers,  and  by  the  [)ractice 
of  all  nations. 

So  1  sui»pose  it  would  not  be  questioned  that  arms,  munitions  of  war- 
commissary  and  (piartermaster's  supplies,  intended  for  sale  to  the  ene- 
my, might  be  captured  or  destroyed.  So,  too,  private  manufactories 
intended  to  furnish  arms  to  be  sold  to  the  enemy,  &c.,  «S:c.  This  enu- 
meration might  be  extended. 

I  feel  safe  in  asserting  that  no  nation  in  Christendom  has  practically 
abamloned  the  right  to  capture  and  destroy  in  all  such  cases.  It  is  a 
direct  blow  at  the  military  jiower  of  the  enemy. 

So  if  an  enemy  banker  lias  engaged  to  supply  the  enemy  government 
with  money,  may  not  the  cash  in  his  vaults  for  that  puri)ose  be  cap- 
tin  ed  if 

This,  too,  would  be  •»  direct  blow  <!t  the  sinews  of  his  military  power, 
(juite  as  effective  and  not  less  humane  th  in  taking  of  life  in  battle. 


.1  '  .1 


H. 

Opinion  of  Mr.  Commissioner  Frazer  in  the  case  of  John  IT.  Ilanna,  vs.  The 
United  States,  -^'o.  2.     {See p.  58,  ante.) 

This  is  a  claim  for  the  destruction  of  810  bales  of  cotton  belonging  to 
the  claimant  by  rebels  in  arms  against  the  United  States.  The  prop- 
erty was  ilestroyed  in  Louisiana  and  .Mississippi  in  1802  by  tiie  (umfed- 
erate  forces  witli  the  concurrence  of  tiie  rebel  authorities  of  Louisiana, 
one  of  the  Confederate  States  so  called.  Her  Britannic  Majesty  had 
recognized  the  so-calle<l  Confederate  States  as  a  belligerent  and  the  con- 
test of  arms  then  prevailing  as  a  public  war.  Aft»*r  siuih  recognition 
by  the  sovereign,  the  subject  of  such  sovereign  cannot,  in  his  character 
as  such  suliject,  aver  that  the  fact  was  not  so.  The  act  of  his  govern- 
ment in  that  regard  is  conclusive  ujion  him. 

Aside  from  this  rec(>gnition  by  Her  Majesty,  it  is  public  history  of 
which  this  commission  will  take  notice  without  averment  or  proof,  that 
the  confederate  forces  were  engaged  at  the  time  mi  a  formidal)le  rebel- 
lion against  the  government  of  the  United  StiWi's.  It  may  not  be  im- 
portant to  the  question  in  hand,  therefore,  thai  Her  Majesty  had  taken 
tlie  action  already  stated. 

It  should  be  further  observed  that  the  particular  "State  of  Louisiana" 
which  coiicuried  and  participated  in  the  destruction  of  the  claimant's 
property  was  a  rebel  (u-ganization,  existing  and  acting  a.s  much  in  hos- 
tility to  the  (iovernment  of  the  Unite*!  States  as  was  the  Confederate 
States,  so-called.  It  was  in  form  and  fact  a  creature  unknown  to  the 
Constitution  of  the  United  States,  and  acting  in  hostility  to  it.  It  was 
an  instrumentality  i>f  the  rebellion.  Its  agency,  therefore,  in  the  spolia- 
tion of  this  cotton  cau!iot  be  likened  to  the  act  of  a  State  of  the  Arueri- 


B^* 


my 


240 


AMERICAN-BRITISH    CLAIMS    COMMISSION. 


caii  Union  claiming  to  exist  nnder  the  Constitution ;  and  any  argument 
tending  to  show  that  under  international  law  the  national  government 
is  liable  to  answer  for  wrongs  committed  by  such  a  state  upon  the  sub- 
jects of  a  foreign  power,  can  have  no  application  to  the  matter  now  un- 
der consideration.  The  question  presentea  is  simply  whether  the  Gov- 
ernment of  the  United  States  is  liable  to  answer  to  a  neutral  for  the 
acts  of  those  in  rebellion  against  it  under  thecinuimstances  stated,  who 
never  succeeded  in  estMblisiiing  a  government.  It  is  not  deemed  necessary 
in  this  case  to  inquire  whether  the  clainuint,  having  a  commercial  dom- 
icile in  Louisiana  at  the  time,  is  to  be  deemed  a  British  "subject  of  Her 
Britannic  Majesty"  in  tiie  sense  of  Article  XII  of  tlie  treaty  which  cre- 
ates this  commission.  Tliat  question  is  argued  by  counsel,  but  it  is 
thought  better  to  meet  the  question  above  stated  for  tlje  reason  that 
the  case  '..ill  theieby  be  determined  more  distinctly  upon  its  merits. 

The  statement  of  the  question  would  seem  to  rentier  it  uunecesary 
to  discuss  it.  It  is  nol  ihe  case  of  a  government  established  de  facto, 
displacing  the  government  dc  jure.  But  it  is  the  case  merely  of  an 
unsuccessful  effort  in  that  direction,  which,  for  the  time  being,  inter- 
rupted the  course  of  lawful  government  without  the  fault  of  the  hitter. 

Its  acts  were  lawless  and  (aiminal,  and  could  remit  in  no  liabilty  on 
tlie  part  of  the  Government  of  the  United  States. 


I. 


Mr.  Commissioner  Frazer\H  disscHtinf/  opinion-in  the  c^ses  of  }frs.  Sherman, 
No.  351),  and  Mrs.  Brain,  Xo.  4-f7.     {See  p.  02,  ante.) 

This  is  an  international  court,  and  the  parties  litigant  before  it  are 
nations,  not  indiridiials. 

But  the  treaty  limits  the  jurisdiction  of  this  tribunal.  Not  all  mat- 
ters of  (litference  between  the  two  governnu'iits  have  been  submitt»'d  to 
the  award  of  this  commission,  but  only  certain  "claims  on  the  part  of 
their  respective  cIti/AMis  or  subjtcts,  against  the  other  government.  The 
corresiioiiden„e  which  led  to  the  treaty  clearly  shows  that  this  means 
^'■claims  o/ "  the  citizens  or  subjects  of  either  government,  against  the 
othei'  government.  (Sir  Edwaid  TUornton  to  Secretary  Fish,  February 
1,  1871,  and  Mi'.  Fish's  reply  of  February  3,  1871.     See  Protocol  I.) 

There  must,  then,  be  an  individual  who  has  a  claim,  and  a  British  or 
American  natlona'lty,  else  we  (;annot  takejnrisdiiitlon. 

When  the  party  whose  person  or  i)r()i)erty  has  suffered  injury  is  dead, 
how  are  we  to  ascertain  who  then  has  such  claim  I  The  liiternational 
law  is  silent,  giving  no  answer  to  this  (luestion.  It  is  a.  matter  regula- 
ted by  municipal  law,  and  the  law  of  the  domicile  of  the  deceased  must 
be  reteried  to  to  as(!ertaiii  who  takes  the  rights  which  he  had  while  In 
life;  that  Is  to  say,  to  ascertain  who  Is  the  imlividual  "  citizen  or  subjeiit" 
in  who^e  behalf  a  claim  exists  after  the  death  of  th(>  original  (ilaiinant. 
If  l>y  the  municipal  law  of  the  domicile  of  the  deceased  nobody  is  entitled, 
then  by  this  treaty  we  cannot  make  an  allowance;  for  we  (!au  only  do 
that  where  there  is  an  indiridiial,  British  or  American,  who  has  a  claim. 
We  have  no  authority  to  create  a  claimant.  The  treaty  might  have  pro- 
vided for  such  cases,  but  It  did  not.  It  might  have  provided  tiuit  pro- 
per damages  sliould  be  awarded  against  our  government  in  favor  of  the 
other,  for  the  wrong  to  the  nation,  without  reference  to  any  question  of 
the  right  of  an  individual  to  sucb  damages,  leaving  the  goverumeut  iu 


w 


ALJKMS    IJKI'OKT. 


241 


argument 
vernmeut 
1  the  siib- 
V  now  un- 

tlie  Gov- 
il  for  the 
51  ted,  who 
neeessiiry 
•eial  doiii- 
'ct  of  Her 
vliieh  cn^- 

but  it  is 
iisoii  that 
nerits. 
iinecesiiry 
I  (le  facto, 
ely  of  ill) 
ng,  inter- 
the  hitter, 
iiibilty  on 


Sherman, 


'ore  it  are 

all  niat- 
iinittt'd  to 
',  part  of 
[Mit.  Tiie 
lis  means 
ainst  the 
February 
.)!  I.) 
iritish  or 

V  is  dead, 
rnational 
M'  reyiihi- 
ise(l  MUi.st 
1  while  ill 
r  subject" 
(;lainiant. 
ientitl«'il, 
only  do 
s  il  claim, 
have  i»'o- 
that  pro- 
'or  of  the 
lestioLi  of 
umeut  iu 


whose  favor  the  award  should  be  made  to  determine,  as  it  mi>«ht  see  tU, 
wiiat  individual  if  any  should  be  benefited  thereby. 

The  treaty  of  the  United  States  with  New  Granada,  and  that  with 
Mexico,  referred  to  in  the  argument,  were  of  this  character. 

Where  the  personal  injury  was  to  one  domiciled  either  in  the  United 
States  or  Great  Britain  and  now  dead,  there  can  be  no  citizen  or  subject 
entitled  to  make  claim  ;  because,  by  the  laws  of  both  countries,  the  right 
to  damages  is  extinguished  by  the  death  of  the  person  injured. 


'if 


K. 

Opinion  of  Mr.  Conimhuioner  Frazcr  in  the  ctixe  of  John  C.  liahminy.  No. 

7.     {See p.  m,  ante.) 

Conceding  that  in  thl:;  case  there  must  be  an  award  of  damages,  yet 
1  do  not  agree  that  it  should  be  large. 

When  the  American  rebellion  began  he  was  domiciled  at  ^»assau,  and 
so  continued  untilJune  13,  18G1,  when  he  removed  to  New  York,  having 
made  his  arrangements  for  that  purpose  the  previous  year,  (his  deposi- 
tion, p.  37.) 

The  rebellion  was  not  h.atched  in  a  corner.  The  firitig  upon  Fort 
Sumter  was  not  a  surprise.  For  many  weeks  prior  thereto,  it  was 
known  all  over  America  and  Europe  that  elaborate  preparations  were 
being  made  for  the  attack.  Jt  was  virtually  under  siege  for  weeks 
before  a  gun  was  lired,  its  supplies  cut  off,  and  fortifications  for  attack 
being  built.  This  is  public  history.  Jt  is  not  pretended  that  this  was 
not  known  in  Nassau.  Arms  of  all  kinds  were  sought  and  in  demand 
in  the  South.  This  claimant  was  at  that  time  willing  to  supply  that  de 
mand,  and  for  the  sake  of  profit  to  put  in  Wilminj^ton  two  cannon 
which  he  owned,  to  be  used  to  destroy  the  Government  whose  liospi- 
tality  he  intended  in  a  few  weeks  to  accept.  On"  <;♦'  his  explanations  of 
this  is  that,  when  so  intending  in  Ainil,  lS(;i  did  not  know  that 

tiring  upon  Sumter  had  really  yet  begun  !  Tlii.^  is  his  st;iten:ent  to 
Consul  Archibald,  (memorial,  p.  17,)  iu  September,  lS(il.  It  is  itossibh* 
that  the  consul  did  not  give  his  statement  correctly,  liiii  n  December. 
1872,  he  plainly  means  to  be  understood  that  at  tliat  time  (A;  lil,  1S<»1 1 
he  "got  news  "  for  the  first  time  that  there  was  "  li1;cly  to  be  war.''''  and 
therefore  he  did  not  send  the  guns  to  Wilmington!  (his  dei)osition,  p. 
48.)  It  overtaxes  credulity  to  be  expectetl  to  believe  that  iin  intellige;n 
merchant  at  Nassau  did  not  learn,  long  before  April,  that  there  as 
"likely  to  be  a  war." 

On  September  2,  18(51,  the  Government,  being  infornuMl  merely  that 
he  had  attempted  to  have  the  guns  shipped  from  Nassau  to  Wilmington. 
:uh1,  80  far  as  we  know,  not  learning  that  he  was  at  the  time  a  resident 
of  Nassau,  and  that  it  was  probably  before  there  was  actual  war,  ha>i 
him  arrested.  Learning  the  facts  as  stated  by  the  consul,  he  was 
promptly  released  after  sixteen  days'  detention. 

The  Government  had  learned  eimugh  to  have  made  it  almost  criminal 
not  to  be  afterwards  suspicious  of  Itahming.  He  had  been  willing  to 
supply  the  rebels  with  arms.  He  was  trading  ostensibly  with  Nassau, 
notoriously  a  mere  way-station  for  goods  intended  for  tlie  nibels.  He 
had  a  tra<ling-house  there.  He  was  in  business  correspon<lence  with, 
aud  sending  goods  to  persons  there  known  to  be  iu  the  confederate 
KJ  II 


-  ^1 

I  'At 


1  :  J  t' 


{:'■!' 


■'!■ 


ri 


m 


'I 


242 


AMEUICAN-nHITISH    ri.AIMS    COMMLSSFON. 


trade.  He  was  suspected  and  watclied.  It  would  have  been  wiclvod 
ii('{?li^ence  not  to  have  watched  him.  Packages  shipped  by  him  were 
found  on  board  a  confederate  vessel  captured  in  attempting  to  violate 
the  blockade — the  "Margaret  and  Jessie." 

Donncihul  now  in  New  York,  he  c6uld  not  lawfully  aid  the  insurgents 
by  trading  with  them  either  directly  or  indirectly,  even  in  the  absence 
of  a  blockade  aiul  an  act  of  Congress  prohibiting  it.  lie  was  now  in 
that  respect  bound  by  all  the  duties  incun)bent  on  American  citizens. 
He  must  restrain  his  avarice— forego  profit  for  the  sake  of  the  country 
in  which  ho  resided. 

Non-intercourse  between  belligerents  rests  upon  a  principle  of  public 
law,  and  needed  no  act  of  Congress  or  ])ublic  proclamation  to  establish  it. 
Trade  with  the  enemj'  indirectly,  via  Nassa",  was  notless  a  violation  of 
this  principle  than  direct  trade.  If  there  was  probable  cause  to  believe 
him  guijty  of  this,  his  arrest  was  fully  warranted.  If  he  so  conducted 
his  business  as  to  create  this  belief,  temjited  thereto  by  the  hope  of 
gain,  he  must  submit  to  the  consequences  imturally  resulting  from  it. 
He  had  abundant  notice  that  he  was  suspected,  and  this  should  have 
put  him  on  his  guard.  * 

December  31,  1803,  he  was  again  arrested,  and  was  held  six  months 
and  two  days.  Was  there  i)robable  cause  for  this  arrest?  It  must  r.ot 
be  forgotten  that  it  occurred  immediately  after  the  hearing  and  ue""p«' 
in  the  case  of  the  "  Margaret  and  Jessie,"  in  which  it  appeared  that 
cases  shii)ped  by  Rahming  were  on  board,  the  marks  unchanged,  and 
that  the  Government  acted  and  must  have  acted  upon  what  then  aj) 
peared,  not  what  now  appears. 

To  recapitulate : 

1.  Two  years  and  a  half  before,  he  had  shown  himself  willing,  for 
gain,  to  aid  even  in  arming  the  insurgents. 

2.  Having  a  house  of  trade  at  Nassau,  he  had  opportunities,  nay, 
excellent  facilities,  to  participate  in  the  conl'ederaio  trade, 

3.  His  business  ostensibly  with  Nassau  was  large. 

4.  Much  of  the  goods  shipped  by  him  were  adapted  to  the  confederate 
demand. 

5.  Some  of  i)is  shipments,  it  appeared,  were  actually  found  on  board 
a  ship  sailing  inider  the  confederate  tlag  o)  route  to  Wilmington. 

One  might  well  iufinire  what  more  was  needed  to  constitute  probable 
cause  for  his  arrest. 

Nor  am  I  yet  satisfied  of  his  innocence.  His  own  deposition,  if  fully 
credited,  ought  perhaps  to  be  deemed  a  sufficient  explanation  of  nearly 
everything.  IJut  I  cannot  accord  full  credit  to  his  statements.  He 
furnished  abundant  reasons  for  (at  least)  caution  in  this  respect. 
He  made  his  memorial  under  oath,  stating  when  certain  vessels 
were  detained,  to  his  injury,  viz,  the  Prince  Alfred,  in  May,  1803, 
and  the  Star  of  the  West,  in  June.  Jn  his  deposition  he  places 
the  first  event  sixteen  months  earlier,  and  the  last  eleven  months 
earlier.  The  explanation  is  that  these  errors  nuist  have  been  either 
clerical  or  typographical.  That  they  are  not  typographical  appears 
by  our  files.  Then  we  have  his  positive  and  unnecessary  afUdavit 
in  bankruptcy  that  he  is  an  American  citizen,  and  his  explanation 
that  he  <lid  not  read  the  affidavit !  The  least  tliat  can  reasonably  ho 
said  of  these  explanations  of  his  is  that  he  is  n(»i  caYcful  as  to  what  \w 
shall  swear  to;  an  oath  being  by  him  regarded  as  imposing  upon  the 
conscience  no  obligation  to  know  what  it  is  tiiat  is  affirmed.  What 
would  become  of  the  administration  of  justice  if  all  men  were  thus 
careless  ! 


1    WIC.vtMl 

liiii  were 
o  violate 

isurgents 
absence 

is  now  in 
citizens, 
country 

of  public 
tablish  it. 
>lation  of 
o  believt^ 
onducted 
hope  of 
J  from  it. 
»uld  have 

X  months 
must  :.ot 
nd  ue""'^<' 
ared  that 
iged,  and 
t  then  ap 


illing,  for 
ities,  nay, 

>iifede  rate 

[  on  board 

:ton. 

3  probable 

)n,  if  fully 
of  nearly 
ents.  He 
s  respect, 
in  vessels 
[ay,  18«.'5. 
he  places 
>,n  months 
een  either 
1  appears 
7  atUdavit 
cplanatioii 
ionably  be 
0  what  he 
upon  the 
;d.  What 
wero  thus 


AGENTS    REPORT. 


243 


His  explanation  of  the  marks  on  cases  found  on  board  the  Margaret 
and  Jessie  leaves  something  more  to  be  desired.  It  is  not  very  probable 
that  a  steamship  running  the  blockade  would  be  laden,  to  any  extent, 
with  empty  barrels  and  boxes ;  and  where  merchants  use  old  cases  iu 
which  to  pack  goods,  they  mark  them  anew.  The  old  marks,  it  is  true, 
sometimes  remain  legibl'i,  but  the  Margaret  and  Jessie  had  on  board 
several  cases  with  only  the  mirks  of  It  iliming's  consignees.  It  hanlly 
<ixplains  this  to  say  that  his  Nassau  house  was  in  the  habit  of  selling 
their  empty  boxes  for  what  they  would  briny,  unless  we  are  also  to  sup- 
pose that  when  the  same  cases  were  afterwards  found  in  the  confederate 
steamship  they  were  empty ! 

In  short,  I  am  not  sure  that  it  was  not  to  him  a  great  favor  that  he 
was  discharged  Avlthout  a  trial. 

llis  complaints  of  harsh  and  inhuman  treatment  in  prison,  other 
than  would  ordinarily  attend  secure  imprisonment,  .M-e,  I  think,  suffi- 
ciently met  by  the  evidence  for  the  defense. 

But  I  think  that  he  was  detained  too  long;  that  he  was  reasonably 
entitled  to  either  trial  or  discharge  earlier. 


L. 

Opinion  of  Mr.  Commissioner  Frazer  on  the  effect  of  failure  of  claimants 
to  Uike  and prosccuic  appeals  in  prize  cases.     {Seej).  90,  ante.) 

Upon  the  question  whether  a  claim  can  now  be  maintained  before 
this  commission  for  vessels  and  cargoes,  or  either,  captured  and  by  the 
proper  courts  of  prize  condemned  as  lawful  prize,  and  no  appeal  prose- 
cuted from  the  judgment  of  such  courts,  there  being  nothing  in  the  cir- 
cumstances to  liinder  or  embarrass  the  claimant  in  prosecuting  such 
ai)peal,  I  liave  reached  a  conclusion  in  the  negati\e.  The  reasojis  which 
have  led  me  to  this  opinion  I  put  in  writing  for  the  consideration  of  my 
learned  colleagues,  with  the  remark  that,  if  I  am  wrong,  I  shall  gladly 
yield  whenever  it  is  shown. 

"  Justice  and  equity  "  constitute  the  rule  of  our  decision  by  the  terras 
of  the  treaty.  This  is  the  foundation  of  international  law,  and  when 
that  law  speaks  upon  a  question,  we  must  be  guided  by  it;  for  both 
countries,  as  well  as  the  nations  of  Chri8tendomr,ecognize  it«  principles 
as  equitable  and  Just ;  and  we  shall  I  e  wholly  at  sea  with  no  guide,  and 
disappoint  both  governments,  if  we  dis  egard  it.  If  by  the  international 
law  there  is  no  valid  dair.i  in  such  a  cj  se,  then  I  know  not  how  its  valid- 
ity can  be  maintained.  True,  the  treaty  confers  upon  us  jurisdiction  of 
such  claims,  because  it  refers  them  to  this  commission.  The  question 
ir.  hand  is  uot  of  jurisdiction,  Init  it  is  whether  th«i  cases  as  stated  in  the 
several  memorials  constitute  claims  which  ought  to  be  allowed.  I  do 
not  doubt  the  jurisdiction,  but  that  does  not  determine  their  validity.  It 
only  makes  it  our  duty  to  decide  whether  they  are  valid  or  not;  and 
that  decision  should  be  according  to  the  i)rincii)les  of  internation.al  law. 

So  fiiT  as  I  know,  the  approved  writers  upon  international  law  are  in 
ticcord  upon  this  question. 

Thus  Itutherforth  : 

Natural  equity  will  not  allow  that  tlio  state  Khould  1)0  .inswcrnldc  for  tlicir  (tlio 
oaptor'H)  actH  until  thOi:eiict8  are  cxnininod  by  all  tht;  ways  which  the  .state  has  ap- 
liointed  for  the  iiurposc,  ('i  lust.,  book   .',  c.  1),  i  IG.) 


If 


■^1 


244 


AMEKICAN-JililTlsn    I'LAIM.S    COMMISSION. 


i**"   JT/' 


And  again . 

The  subjects  of  a  neutral  state  have  no  riylit  to  a]>p<!al  to  tlieir  own  state  for  a  reriie- 
«ly  against  the  erroneous  sentence  of  au  inferior  court  till  tliey  have  appealed  to  tint 
superior  court,  or  to  the  several  superior  courts  if  there  are  more  courts  of  this  sort 
than  one,  and  till  the  sentence  has  been  conlirined  in  all  of  them.  Kor  these  courtn 
are  so  nuiny  means  appointed  by  the  state  to  which  the  captors  belony  to  examim? 
into  their  conduct  ;  and  till  their  conduct  has  been  (^xamiiuMl  by  all  these  means,  tlu- 
state's  exclusive  right  of  judging  continues.     (Id.) 

Wheaton,  (Lawrence's  ed.,)  p.  675,  says  that  "  the  neutral  has  no 
ground  of  complaint"  until  the  acts  of  the  captors  are  conlirnied  by  the 
sentences  of  the  tribunals  appointed  by  him  to  adjudicate  in  matters  of 
prize,  what  he  suffers  being  the  inevitable  result  of  the  belligerent  right 
of  capture;"  and  cites  Uutherforth  at  length  in  his  text. 

On  the  7th  March.  1802,  Sir  Koundell  Palmer,  solicitor-general,  de- 
clared in  a  debate  in  i'>r  liament  that  it  was  the  ordinary  law  of  nations, 
than  which  "  nothing  is  better  known,"  that  the  neutral  must  not  int.M- 
fere  except  by  appeal,  if  the  first  decision  in  prize  is  deemed  wrong. 
(Law.  Wheat.,  6.S0  n.) 

An  English  commission  in  1753,  in  a  report  concerning  reprisals  by 
Prussia  for  captures  by  Great  Britain,  said,  concerning  adjudications  in 
prize,  "If  no  appeal  is  offered,  it  is  an  acknowledgment  of  the  justice 
of  the  sentence  by  the  ])arties  themselves,  and  conclusive."  (Wheat., 
Hist.  Law  of  Nations,  210;  see  also,  Wheat.,  Int.  Law,  (Lawr.,  078.) 

Wildman  .seems  to  adopt  this  langUcage  as  expressive  of  the  rule  of 
international  law.    (Inst.,  vol.  1,  p.  .'J53.) 

Governor  Lawrence,  the  learned  editor  of  Wheaton,  in  a  letter  of  date 
May  21,  1871,  published  in  the  World  newspaper,  concerning  this  very 
treaty,  before  its  ratification  by  the  American  Senate,  speaking  of  this 
commission  and  the  character  of  claims  which  it  could  allow  consist- 
ently with  principles  of  public  law,  said : 

So  far  as  regards  nuiritime  prizes,  it  is  a  well-recogni/ed  principle  tliat  no  claim  can 
be  made  on  the  government  of  the  captor  till  all  the  reuuMlies  provided  through  the 
prize  courts  luive  been  exhausted.  (Pamphlet,  pp.  'iri,  "-i'.);  see  also,  Law's  note  6{»,  to 
Wheat.,  Int.  Law,  IbU.) 

Opposed  to  this  uniform  and  unbroken  current  of  authority,  English 
and  American,  Her  Britannic  Majesty's  counsel  cites  only  a  single  case, 
which  it  is  urged  should  outweigh  all  the  text-w  riters.  The  case  cited 
(bark  Jones — American  and  British  commission  nnder  treaty  of  1853,  p. 
83,)  was  not  a  prize  of  war.  It  was  a  capture  of  a  supposed  slave-trader 
made  under  British  statutes.  Tlie  capture  was  made  at  St.  Helena, 
where  there  was  a  court  of  record  having  jurisdiction,  but  the  vessel 
was  taken  to  Sierra  Leon,  a  distance  of  one  thousand  miles,  for  adjudi- 
cation. She  was  accpiitted  of  the  charge,  and  it  was  adjudged  that  there 
was  no  probable  came  for  seizure.  But  the  court  assessed  her  with  costs 
for  "  resistance  of  the  master  to  fair  inquiry" — a  personal  matter  of  which 
the  court  had  no  cognizance  under  the  statute.  There  was  no  appeal. 
These  are  the  circumstances  under  which  Judge  Upham  was  of  opinion 
that  the  owner  was  not  bound  to  take  an  appeal.  Hr>  seems  to  have 
deemed  the  judgment  for  costs  coram  nonjudice  and  utterly  void.  It 
further  appears  that  the  master  did  not  know  where  to  follow  his  vessel, 
and  was  deprived  of  all  means  of  following  it,  (p.  101.)  He  did  not  ap- 
pear in  court.  How  could  he  if  such  were  the  facts?  Judge  Upham, 
the  American  commissioner,  might  well  hold  that  under  such  circumstances 
an  appeal  iras  not  necessary  to  perfect  the  right  of  the  American  Gov- 
ernment to  demand  redress. 


AliKNTS    KKPoKT. 


245 


The  opinion  of  Jiidye  Uphain  seems  to  imply  tliat  in  the  absence  of 
.special  circunistanirs  an  appeal  would  be  neeesaary. 

The  opinion  of  .Mr.  Hornby,  British  commissioner,  is  silent  upon  the 
(piestiou  of  appeal;  and  indeed  it  is  ditUeult  to  see,  from  his  opinion, 
(p.  107,)  upon  what  ground  he  could  have  consented  to  award  any  dam- 
ages unless  it  was  that  claimed  by  Judge  Upham — that  the  court  liad 
no  jurisdi'jtion  under  the  statute  to  adjudge  costs  against  the  vessel 
for  the  alieged  personal  misconduct  of  the  master.  He  was  willing  to 
allow  for  detention  of  the  vessel  and  damages  to  her,  and  sacrifi.ce  on 
t'ijrgo. 

The  umpire  expressed  no  opinion  upon  the  question  of  appeal. 

The  case  was  peculiar,  and  1  do  not  deem  it  an  authority  applicable 
to  the  general  question  under  (consideration.  (Jeneral  rules  can  never 
safely  rest  upon  the  precedents  of  exceptional  or  hard  cases.  That 
there  should  be  some  exceptions  to  the  general  rule  as  I  <leem  it  to  be, 
1  have  no  doubt.  For  ijistance,  if,  as  in  the  case  of  the  Jones,  an  appeal 
was  rendered  very  dilticult  or  impossible,  or  was  embarrassed,  by  the 
act  of  the  captors;  or  if  i)revious  ajFjJi'als  in  similar  cases  had  shown 
that  the  appellate  tribunal  of  last  reson  did  not  govern  itself  by  inter- 
natiomil  law,  thus  indicating  that  an  api>"al  would  have  heou  useless, 
or  if  it  had  been  waived  by  tiie  government  of  the  captor,  I  would  hes- 
itate long  before  hohling  that  api»eal  was  recessary  to  lay  the  fouiula- 
tion  for  an  international  claim. 

But  it  is  suggested  that  th<'  text-writ»Ms  cited  are  considering  only 
the  grounds  of  war  or  reprisals,  and  not  the  cau^v's  adeipiate  to  justify 
a  (ilaim  for  indemnity  by  one  nation  against  auotlu'r.  J  cnn  only  say 
that  I  think  this  is  a  mistake.  Besiiles,  their  reasoning,  if  correct,  is 
absolutely  conclusive  against  both.  If,  as  Rutherford  asserts,  "natural 
equity  will  not  allow  that  tlie  state  should  be  answerable,"  or  "if  thr* 
subjects  of  the  neutral  state  have  no  right  to  appeal  to  their  own  state 
for  a  remedy  against  the  erroneous  sentence;''  or  if,  a(H;ording  to  Whea- 
ton,  "the  neutral  has  no  ground  of  complaint,"  and  what  he  suffers  is 
only  "the  inevitable  result  of  the  belligerent  right  of  capture;*' or  if, 
according  to  VVildman,  a  failure  to  appeal  is  "an  ackno\vle<lgment  of  the 
justice  of  the  sentence;'  or  if,  according  to  Lawrence,  "no  claim  can 
l»e  made  on  the  government  of  the  captor,''  then  I  know  not  upon  what 
ground  it  can  be  held  that  these  claims  can  be  sustained  upon  the  facts 
as  alleged. 

But  reprisals  are  justified  by  the  public  hiw  for  refusal  to  repair  an 
injury,  and  when  it  is  admitted  that  repi  sals  cannot  be  jnade,  it  is 
thereby  confessed  that  there  is  no  just  int«'rnational  demand. 

Granted  a  just  claim  or  injury  recognized  by  the  jiublic  law,  then  by 
rliat  law  the  state  aggrieved  is  tlie  exclusive  juilge  of  the  mo((e  of  redress. 

The  note  of  Mr.  Seward  of  December  L*2,  180'J,  concerning  the  case  of 
the  Will-o'the-Wisp,  (No.  378,  p.  3(),)  has  been  referred  to.  AVas  this 
either  a  waiver  of  api)eal  in  that  case,  or  the  expression  of  an  opinion 
that  an  appeal  was  not  necessary  J  That  note  does  not  stand  alone. 
The  reply  of  Lord  Lyons  (pp.  .'JO,  'M)  seems  to  recognize  that  as  a  mat- 
ter of  right  the  United  States  might  stand  on  the  absencre  of  an  a|)peal ; 
but  it  makes  an  appeal  to  the  magnanimity  of  the  American  (rovern- 
ment  in  the  particular  case.  Mr.  Seward's  answer  thereto  of  April  2, 
18G3,  gives  distinct  notice  that  the  ai)peal  is  n«)t  waived,  and  that  it  is 
deemed  necessary  before  the  executive  government  can  be  called  upon 
to  consider  the  subjecct. 


■ik 


■:''M 


It:  K 


I 


*■  .III 


m 


24G 


AMERICAN-BRITISH    (.'I.AI.MS    COMMISSION. 


M. 

Mr.  Commmioner  Fnizer''8  opinion  in  the  "  liio  drande"'  casen.     {Seep.  110, 

ante.) 

1.  The  remarks  made  iii  the  general  arjjuineiit  for  the  claimants  nrg- 
in{?  that  chiims  of  this  character  were  inten<UMl  to  be  referred  to  tliis 
commission  by  Article  XII  of  the  treaty,  seem  unnecessary,  inasmuch  as 
our  juristlictipu  of  the  cases  is  not  questioned,  and  cannot  be. 

If  it  is  intended  to  infer  that  there  must  be  an  aicard  of  HamageH, 
from  the  fact  that  there  is  jurifidiction,  I  cannot  admit  the  inference. 
Jurisdiction  is  merely  the  power  to  hear  and  decide^  and  necessarily  in- 
A'olves  the  duty  of  deciding  favorably  or  adversely  as  the  circumstances 
shall  warrant. 

2.  In  like  manner  the  somewhat  extended  remarks  of  the  general 
argument  to  establish  that  bona  Jide  trade  with  the  Mexican  port  of 
Matamoras  was  not  a  violation  of  the  blockade,  and  could  not  lawfully 
be  reached  by  the  bloj'kade,  nuiy  be  i)ut  out  of  the  case.  No  such  thing 
was  ever,  for  a  moment,  pretended  by  the  United  States.  If,  however, 
it  is  intended  to  suggest  the  inference  that  damages  must  bo  awarded 
for  these  captures  because  it  was  adjiulged  that  these  vessels  were  in 
fact  engaged  in  that  bona  Jide  trade,  then  I  deny  the  inference.  The 
reason  is  a  good  one  for  discharging  the  vessel,  but  it  has  little  to  do 
with  the  question  whether  damages  should  be  given.  That  depends 
upon  the  inquiry,  was  there  good  apparent  cause  for  making  the  cap- 
ture. 

3.  In  view  of  the  instructions  to  the  blockading  fleets,  (satisfactory  to 
Lord  Kussell,)  of  the  contemi)oraneous  disavowals  of  Mr.  Seward,  and 
of  the  uniform  decisions  of  the  American  prize  courts,  there  is  no  war 
rant  for  the  assumption  (p.  21)  that  "these  captures  were  intended  to 
affect  the  trade  between  Great  Britain  and  ^lexico." 

4.  The  doctrine  that  this  commission  may,  by  its  decisions,  disregard 
the  law  of  nations,  in  deference  to  whatever  undefined  notions  of  "equity 
and  justice"  the  several  members  of  the  commission  may  happen  to 
entertain  from  time  to  time,  is  to  me  a  very  great  surprise.  It  brings 
to  mind  the  remark  of  an  eminent  English  law  judge,  resisting  the  estab- 
lishment of  the  jurisdiction  of  the  courts  of  equity  in  that  country,  to 
the  effect  that  decisions  in  equity  depended  upon  the  individual  con- 
science of  whosoever  happened  to  be  chancellor,  and  were  therefore  as 
uncertain  as  the  length  of  the  chancellor's  arm  or  foot!  From  such 
equity  as  that  he  might  well  have  wished  the  deliverance  of  his  country. 
The  injustice  of  his  reproach  is,  however,  seen  in  the  fact  that  "equity 
follows  the  law" — abides  by  it — not  only  obeys  but  maintains  it,  and 
administers  justice  according  to  a  system  of  known  and  e^^^tablished 
principles  sanctioned  by  precedent;  that  it  does  not  depend  upon  the 
individual  conscience  of  the  judge. 

What  is  the  law  of  nations  which  it  is  insisted  this  commission  may 
disregard  ?  All  detinitions  of  it  are  in  accord,  substantially,  and  none 
of  them  better  than  Blackstone's,  "that  which  regulates  the  conduct 
and  mutual  intercourse  of  independent  states  with  each  other  by 
reason  au<l  natural  justice."  It  is  the  natural  law  apidied  to  nations 
in  their  relations  with  each  other,  so  far  as  they  have  consented  that  it 
shall  be  thus  applied.  It  is  wanting  in  some  of  the  essentials  of  strict 
law,  however  j  it  is  not  prescribed  by  a  common  superior,  and  its  only 
sanction  is  the  public  oinnion  of  Christendom.  Nor  is  it  a  complete 
code  having  an  established  rule  for  all  questions  that  may  arise.    It  is 


AGENTS    REI'nRT. 


247 


yi't  ill  the  period  of  its  growtli ;  but  whenever  it  does  speak  it  utters 
the  rule  which  the  wisdom  of  the  luitioiis  lias  by  (loinuiou  eoiiseiit  found 
to  be  most  in  consominee  with  reason  and  natural  jnsti(;e.  VVIien  it 
},'ive8  a  nde  for  the  government  of  a  given  case,  it  furnishes  the  full 
measure  of  international  obligation  in  that  case — is  the,  only  standard 
by  which  con<lnct  in  that  case  can  be  properly  tested.  In  other  words, 
it  ascertains  what  is  "ecpiity  and  justice"  between  nations. 

If  seeking  to  pay  a  compliment  to  the  eminent  men  who  negotiated 
the  treaty,  I  thiidc  one  would  hardly  choose  to  say,  "they  authorized 
the  mixed  commission  at  w  ill  to  substitute  for  the  rules  of  right  which 
have  been  sanctioned  by  all  Christian  jmwers  and  the  courts  of  both 
countries  the  individual  notions  of  the  Commissioners  thereafter  to  be 
chosen." 

The  application  sought  of  the  i)roposition  alluded  to  is,  in  substance, 
that,  though  the  facts  before  the  prize  court  fully  justitied  its  judgments, 
according  to  the  international  law  as  even  tlie  IJritish  courts  would 
themselves  declare  it  to-day,  yet  this  commission  may,  upon  some 
imaginary  ground  of  e(piity,  be  bound  nevertheless  to  award  damages  ! 
I  can  only^  say  that  no  such  result  can  occur  here,  except  over  the  most 
emi)hatic  and  decided  dissent  with  which  1  can  oppose  it. 

The  Science  (No.  iJOl)  was  found  at  anchor  in  the  roadstead  outside 
the  mouth  of  the  llio  ( Jrande,  within  less  than  a  marine  league  of  the 
Texas  shore,  which  was  blockaded.  Her  outward  cargo,  then  discharged, 
had  consisted  in  part  of  confeder.ate  grey  cloth,  (L'!)0  bales.)  She  was, 
in  fact,  consigned  to  Matamoras,  and  really  had  discharged  her  cargo 
there.  Matamoras  was  forty  miles  up  the  river.  The  Texas  shore  was 
accessible  and  less  than  two  and  a  half  miles  distant.  Captured 
November  5,  1803 ;  had  been  there  since  August  12. 

The  Dashing  Wave  (No.  395)  was  found  at  anchor  near  the  Science, 
but  further  within  American  watersi  No  part  of  her  cai'go  was  war 
material.  There  were,  however,  two  boxes  (£12,000)  of  gold  coin,  £7,000 
of  which  belonged  to  one  Caldwell,  whose  nationality  was  unknown,  but 
it  is  evident  he  was  not  British.  It  appeared  from  papers  on  board  that 
at  his  request  Lizardi  &  Co.,  British  merchants,  shipped  it  as  theirs,  the 
bill  of  lading  (p.  103)  containing  the  unusual  recital  that  it  was  "all 
British  property."  She  had  discharged  no  part  of  her  cargo.  Caldwell 
had  re(piested  this  shipment  to  be  made  by  Lizardi  &  Co.,  as  their  pro- 
perty, in  their  name,  with  £5,000  to  be  advanced  by  them  to  him,  if  their 
consignee  at  Matamoras  approved  of  proposed  investments  of  it.  He 
had  specially  recjuested  that  it  be  insured,  "including  the  wai  risk," 
(p.  200.)     She  was,  in  fact,  bound  for  ^Matamoras. 

Caldwell  made  no  claim,  but  a  claim  was  made  on  behalf  of  Lizardi 
&  Co.  for  the  whole  £12,000,  averring  that "  no  other  persons  are  interested 
therein,"  and  sworn  to  by  their  attorney.  Also,  in  the  same  behalf  and 
to  the  same  broad  extent,  by  Armando  IJrothers,  to  whom  the  consignee 
had  indorsed  the  bill  of  lading. 

The  Volant  (No.  3.S8)  was  captured  in  American  waters,  the  same  as 
the  Science  and  Dashing  Wave,  loaded  by  same  brokers  who  loaded  the 
Science,  and  had  confederate  gray  cloth,  (15  bales,)  being  balance  of 
invoice  sent  by  Science.  The  remainder  of  her  cargo  was  blankets, 
shoes,  and  woolen  stockings,  and  brandy.  She  had  not  discharged  her 
cargo.  The  invoice  on  board  described  the  cloth  (p.  7l»)  as  four  bales 
blue  mixed,  one  darkmivvd,  ten  .sAj/  blue.  It  seems  that  the  whole  was 
mixed,  no  shy  blue  whatever.    The  manifest  showed  boots,  but  no  hIioch. 

The  Sir  William  Peel  (No.  243)  was  captined  at  the  ihouth  of  the 
Rio  (Jrande,  in  Mexican  waters.     Slie  had  been  there  aboutthree  mouths. 


24H 


AMKIJICAX-KRITISII    CLAIMS    COMMISSI) »\. 


Ilm' carp:o,  as  por  inanift'st,  had  beoii  mostly  discliar^jcd  at  Mataiiioras, 
and  Klie  had  taken  901  bah's  of  cotton,  part  of  hor  return  carjjo.  8l»e 
had  two  2r>-ponn<l  ^iins  mounted,  uonsidurablu  ammunition,  .small  arms, 
tomahawks,  {Mithisses,  «S:c.,  for  boarding*',  enfjine.s  six  feet  below  water 
Jine.     liurdcn,  1,011  tons.    Siffnal  lijjhts  were  on  her  at  night. 

A  confederate  ottlcer,  it  w  as  sworn,  chiimed  to  have  received  arms  from 
her,  landed  on  the  coast  of  Texas  at  nij>'ht ;  and  this  was  not  contradi(;te(i, 
though  there  was  opportupity.  There  is  other  strong  inculpatory  evi- 
dence, which  is,  however,  «.ontradicted  ;  tending  to  show  both  the  inward 
and  outward  cargoes  to  liave  been  confederate  property. 

The  question  in  all  these  cases  is,  whether  or  not  there  was  probabh* 
cause  i'or  cai)ture.  The  cargo  of  each  of  them  was  adapted  to  the  Texan 
market;  and  there  is  little  (loubt  that  it  was  expected  ultimately  to  find 
sale  ther*»,  whether  flrst  to  enter  into  the  general  stock  of  Matamoras, 
or  merely  to  observe  the  lorm  of  passing  through  that  place  in  transit 
to  Texas. 

It  seems  from  the  evidence  that  merchandise  unladen  at  the  mouth  ot 
the  Kio  (irande  for  Matamoras  was  conveyed  to  the  latter  place  either 
in  small  steamers  by  the  river,  or  in  wagons  by  land.  Jt  seems,  also, 
that  this  land  transportation  by  wagons  was  likewise  practicable  on  the 
Texas  side  from  the  coast  at  the  mouth  of  the  river. 

It  was  a  matter  of  notoriety  that  enormous  supplies  of  military  as  well 
as  other  goods  for  consumption  in  the  confederacy  had  been  introduced 
through  Texas  direct,  until  the  blockade  of  that  coast  was  made  etlec 
tive,  and  afterwards  through  Matamoras.  It  was  equally  notorious 
that  there  was  in  Texas  •:i  gieat  demand  for  such  goods  when  these  ves- 
sels were  seized;  and  that  it  was  the  i)olicy  of  the  rebel  authorities  to 
ship  cotton  abroad  rather  than  sell  it  at  home. 

These  considerations  are  mentioned  to  show  the  strong  temptations 
which  existed  to  introduce  goods.,  and  especially  arujs  and  ammunition, 
(which  could  not  go  through  Matamoras,)  into  Texas  direct.  And  if 
accomplished  it  would  avoid  Mexican  customhouse  scrutiny,  duties, 
charges  Jiud  detentions,  and  all  the  inconveniences  which  flow  from 
circuitous  and  indirect  methods. 

Inasmuch  as  watchful  Fe«leral  cruisers  were  present  almost  constantly 
any  attempt  by  day  to  put  goods  upon  the  Texas  shore  would  have 
been  too  hazardous  for  probable  success.  If  done  at  all,  it  must  have 
been  under  cover  of  darkness,  and  in  small  (juantities  at  a  time,  and  by 
the  use  of  small  boats.  This  woidd  consume  time,  and  would  be  greatly 
facilitated  by  nearness  of  the  ship  to  the  Texas  shore. 

"The  Science.''  The  foregoing  observations  apply  in  all  these  cases. 
With  II  burden  of  only  JJOO  tons,  the  length  of  her  visit  (nearly  three 
months)  was  of  itself  remarkable.  She  had  the  strong  temptati()n  to 
violate  the  blockade,  and  she  had  phuted  herself  so  near  the  Texas  shore 
that  she  hfid  the  opportunity  to  do  it.  These  circumstances  of  suspicion 
she  created,  and  did  not  explain.  If  a  ship  may  thus  put  herself  so  near 
a  blo(;kaded  shore  for  months,  where,  under  cover  of  the  night,  she  can 
land  her  cargo  ujmn  it,  and  this  without  any  peril  or  cause  of  suspicion, 
then,  indeed,  the  right  of  blockade  is  less  valuable  to  a  belligerent  than 
I  believe  it  to  be. 

I  am  thus  led  to  the  conclusion,  not  merely  that  the  judgment  of  the 
Supreme  Court  in  the  ease  of  the  Science  was  not  clearly  wrong,  but 
that  that  judgment  was  clearly  right. 

'*  The  Dashing  Wave.''  The  foregoing  remarks  apjily  with  equal  force 
to  the  case  of  the  Dashing  Wave,  except  that  she  had  but  recently  arrived 
at  the  [dace  where  she  was  seized  ;  and  in  this  case  there  is  superadded 


ACKNIS    RKI'OIM 


'2l\) 


but 


rlio  fiirts  coin'citiiiijjf  the  coin  o\'  CiihlwoU.  A  Moxicaii  would  have  no 
occasion  thns  to  conceal  his  owncrslii]).  A  Mexican  would  not  have 
feared  to  nuike  <;laini  in  the  prize  (!ouit.  He  was  either  Mexi»;an  or 
confederate,  for  his  country  had  political  troubles.  The  conclusion  is 
ilifficult  to  avoid  that  he  was  an  enemy,  and  his  property  liable  to  cap 
lure,  contaminating  all  that  belouf^ed  really  to  Li/ardi  »&  Co. 

I  i)erceive  no  error  in  tMe  judgnu'iit  of  the  Supreme  Court  in  this  case, 
(except  in  its  failure  to  condemn  the  coin  as  lawful  prize. 

"The  Volant''  is  a  case  much  like  the  Dashing  Wave.  There  was  no 
simulated  ownership  of  cargo,  but  there  was  an  apparent  effort  t<»  mis- 
lead by  the  invoice,  as  to  the  cloth — to  conceal  the  i\u't  that  it  was 
confederate  gray. 

1  see  no  sutticient  reason  to  hold  in  this  that  the  Judgment  of  the 
Supreme  Court  was  wrong. 

"The  Sir  William  reer'diffcrs  from  the  other  cases  in  the  fact  that  she 
was  captured  in  Mexican  waters,  where  she  had  a  right  to  be;  though 
it  seems  from  the  evidence  that  she  had  previ«uisly  been  in  Texan 
waters,  hi  all  other  respects  the  cas(»  is  stronger  against  the  ship 
than  in  either  of  the  others.  It  is  oidy  by  giving  her  the  beneJit  of 
doubts  that  1  can  say  she  shoulil  not  have  been  liomlenuied.  I  am  very 
clearly  of  opinion  that  there  was  alumdant  reason  for  seizing  her  and 
sending  her  in  for  adjudication. 

That  she  was  taken  in  Mexican  waters  was  a  violation  of  the  sover- 
eignty of  ^fexico,  but  not  of  the  rights  of  the  shii)  and  cargo,  which 
could  be  interiiosed  for  their  protection  except  by  ^lexico,  was  the 
doctrine  held  by  the  Supreme  Court.  I  think  the  proposition  is  fidly 
supported  by  reason  and  the  piinciples  of  Justice;  and  that  it  is  a 
sound  principle  of  international  law,  best  in  ac(!«)rd  with  the  adjudged 
cases. 

On  the  question  of  the  assessment  of  damages  in  the  ease  of  the 
Sir  William  Peel,  Mr.  ("ommissioner  Fra/er  delivered  the  folh)wing 
dissenting  opinion : 

Concerning  the  assessment  of  damages  in  the  case  of  the  Sir  Wil- 
liam Peel,  (the  Judgment  of  the  Supreme  Court  of  the  United  States 
being  deenu'd  erroneous  l>y  my  colleagues,)  1  felt  constrained  to  dissent 
upon  an  important  ])oint. 

The  ship,  and  nearly  all  the  cargo,  having  been  restored,  it  was  mate- 
rial to  ascertain  the  value  of  the  |>roperty  so  restored  at  the  date  of  restitu- 
tion. If  it  was  then  worth  as  much  as  when  captured,  the  only  legitimate 
•lamages,  it  seenuMl  to  me,  woidd  belts  use<luring  the  period  of  detention, 
togetlier  with  costs  and  expenses.  The  value,  I  thought,  should  be  taken 
at  the  time  and  i)lace  of  restitution,  and  not  at  a  diiVerent  tinu'.  It  had 
been  ascertained  at  that  time  by  an  appraisement  by  the  prize  court,  one 
<»f  the  appraisers  being  an  agent  of  the  claimants.  This  appraisement 
was  in  round  numbers,  in  gold,  £(l7,r>(M>.  l>ut  the  clainumts  chose,  at 
very  great  expetise,  to  take  the  pro[)erty  to  Kugland,  where  they  sold  it, 
realizing  only  £31),«i(>0 ;  from  which  has  been  deducted  all  expenses  of 
removal  to  Kngland,  insurance,  and  other  ex[)enses  of  its  preservation 
and  care  after  restitution,  (a  very  consideralde  aggregate,)  and  these 
net  proceeds,  deducted  from  the  value  at  the  time  of  capture,  have  been 
taken  as  a  i)art  of  the  damages  awarded.  1  could  not  resist  the  conclu- 
sion that  the  claimants  had,  after  restitution,  sacrificed  the  i)roperty 
for  but  little  more  than  half  its  value ;  an<l  I  coubl  not  agree  that  the 
United  States  should  suffer  that  loss.  1 1  constitutes  about  three-fourths 
•of  the  larg?  suni  awanled  in  the  case. 


!']; 


2r)0 


AMKKH  AN-hKITIsil    (.I.AIMS    ('« ».M  \l|ss|n\. 


N. 


Umcntinii  opinion  of  Mr.  (JomminHiomr  Fmzvr  in  thu  cane  of  the  Cinw^ 
sian,  y'on.  4;j2,  i'SA,  and  444.     (*S'tr  />.  14.S,  ante^ 

TIk^  only  liiwf'iil  ohjcot  of  u  blockudc  is  to  in  jure  tli«i  ciMTiiy.  Ihiict 
tlicre  cannot,  coiLsistciitly  with  itnblic  law,  Ihmi  blockade  of  a  |)ort  uiiIcns 
it  be  an  enemy's  jiort. 

But  I  am  not  prepared  sny  that  the  mere  occupancy  of  a  port,  how 
ever  inecarions  and  temporary,  by  the  bellif^erent  maintaining;  tin 
blockade  thereof,  is  such  a  possession  as  nuikes  the  port  no  longer  the 
enemy's,  but  that  of  the  blockading  bellijfcrent,  thereby  terminating,' 
the  blockade.  1  know  of  no  authority  which  go(>s  to  that  extent.  In 
such  a  cuso  I  think  the  question  must  bere;;arded  as  one  of  tirst  impres 
sion,  open  to  the  just  influenco  of  every  consideration  which  should  atVcct 
the  decision  of  a  new  question. 

But  I  do  not  think  this  question  is  necessarily  involved  in  the  decision 
of  the  cases  growing  out  of  the  cai)ture  and  condemnation  of  the  Cir 
cassian,  and  therefore  I  do  not  discuss  it. 

There  has  been  much  criti(!ism  of  the  judgment  of  the  Supreme  Court 
in  the  case  of  the  Circassian,  (li  Wall.,  135.)    That  judgment  has  been 
questioned  in  (puirters  entitled  to  great  lespect;  and  it  has,  on  sucii 
occasions,  uniforndy,  1  believe,  been  assume<l  that  at  the  date  of  the 
capture  of  the  vessel,  (May  4,  LSOli,)  the  port  of  New  Orleans  was  in  tin' 
imssession  of  the  United  States,  a  possession  which  subsequent  events 
l)roYed  to  be  (whatever  may  have  been  apprehended  at  the  time)  perina 
nent  and  uninterrupted.    And  it  has  been  assumed  that  the  Suprcnn 
Court  held  that,  under  such  circumstances,  the  blockade  of  the  port  was 
not  brought  to  an  end,    This  is  a  grave  nusapprehension,  not  only  ot 
historical  facts  but  of  the  doctrine  announced  by  the  Supreme  Court : 
and  yet  so  easy  to  fall  into,  that  only  by  care  can  it  be  avoitled.    It  i^ 
undoubtedly  a  fact  ot  history  that  for  several  days  prior  to  the  captui' 
at  sea.  of  this  ship,  the  military  forces  of  the  United  States  had  actual 
possession  of  the  city  of  New  Orleans,  were  not  there  immediately  men 
aced  by  any  hostile  force,  and  ever  after  held  it.     It  is  so  natural  to  con 
found  the  city  with  the  port  of  New  Orleans  that  the  error  is  not  won 
derful.     And  yet  the  distinction  is  very  wide,  and  practically  very  ini 
portant. 

The  city  of  New  Orleans,  of  which  the  United  States  lield  possessi(»ri. 
was  a  municipal  corporation,  possessing  geographical  boundaries  deUni'<! 
by  the  laws  of  the  State  of  Louisiana.    The  boundaries  included,  at  tin 
utmost,  only  so  much  of  that  larger  territory  called  the  parish  of  Orlea^.s 
as  lies  on  the  left  bank  of  the  Mississippi  Kiver.  But  the  National  Govern 
ment,  having  by  the  Constitution  the  control  of  conuu!  rce,  and  consc 
quently  the  power  to  detine  the  geographical  limits  of  the  ports  of  tin- 
United  States,  had,  by  act  of  Congress  taking  effect  September  10, 1H')0. 
declared  "  that  the  port  of  New  Orleans  shall  be  and  is  hereby  so  extendc<l 
as  to  embrace  the  whole  parish  of  New  Orleans,  on  both  sides  of  tln^ 
Mississippi  Kiver."    (0  Stat,  at  L.,  458.)     It  was  not  the  city  merely,  but 
the  whole  port  which  had  been  blockaded.    And  the  question  before 
the  Supreme  Court  was  not  whether  the  possession  of  a  port  by  a  block 
ading  belligerent  puts  an  end  to  the  blockade.     It  is  a  disreganl  of  tlic 
facts  so  to  state  it,  ami  it  is  a  misapprehension  of  the  decision  of  the  court 
to  suppose  that  it  was  reached  by  determining  that  tpiestion  in  the  neg 
«tive.    The  real  question  was  deemed  by  the  majority  of  the  court  to  bt; 
whether  possession  of  the  city  by  the  United  States  terminated  its  block 


S  '  ^ 


a<;knts  ijkimum. 


251 


ir  Cirnt'H 


llvXH'l 
>I't  lllll('N>< 

ort,  how 
liii;;  tli< 
mp'i'  tl)c 
iniiiatiii;^ 
tent.  In 
it  impri's 
iltl  atlect 

(l«>cisii)ii 
'  the  Cir 

ne  Court 
iuis  been 
,  on  Hueli 
te  of  tlic 
'HH  in  tlx' 
nt  events 
p)  perniii 
Siipri  iiif 
port  was 
)t  only  ot 
le  Court : 
ed.    It  is 
e  captui' 
u\  actual 
tely  men 
al  to  con 
not  won 
very  ini- 

>ssessi(»n, 
•sdetint-t! 
m1,  at  the 
f  Orleans 
1  Govern 
1(1  consc- 
•ts  of  the 
10, 1850. 
extended 

L'S  of  tht! 

?rely,  but 
»n  before 
■  II  bh)ck 
I'd  of  tl)e 
the  court 
I  the  negr 
art  to  bi- 
ts block 


ade  of  the  port.  It  neetln  ordy  a  careful  reading  of  the  opinion  of  the 
Chief  Justice  to  see  that  he  saw  ch'arly  the  dilUrence  between  the  city 
and  the  port  of  Js'ew  OrhMins:  and  an  e\aniination  of  tini  dissenting; 
opiiMon  of  Judge  Nelson  will  also  show  that  he  entirely  coid'ounded  the 
city  with  the  port. 

Ih  it  possibl<'  to  misunderstand  the  following  language  found  in  the 
npiinon  of  the  Chief  Justice  if 

It  (tlin  lilockiulx)  a|)i)li<><l  not  to  tlu«  city  alone,  lint  controllcil  tlio  purt  wliich  inchidfA 
tliu  wholo  piiriNh  ot'  Oi'lttauH  and  licH  on  Itotli  hI(Ii>m  of  tlio  MiH.sis.si|>|ii,  and  all  tlio  iioiIh 
on  that  rivtT  and  on  tliH  laki-s  east  of  tlio  city.  Now,  it  nniy  1m)  well  <!noii>;li  roni't-dcd 
that  a  continnons  and  coinpluto  poK  it  sion  of  the  city  tniil  thv  port  and  ofthi!  approachcH 
from  the  Onlf,  would  inaku  u  lilockadit  iinncc«>HNary,  and  wonhl  Nn|MTHedo  it.  Itiit  at 
tiiu  tiniu  of  thu  captnrc  of  tint  C'inasrtiaii  tliuiu  was  itu  mivli  pomieixion.  Only  tho  ci/y 
wuH  occnpicd,  not  tlir  port. 

Nothing  can  bo  more  certain  than  that  the  (Jhief  Justi<'e  thought  there 
was  an  important  and  very  practical  distinction  between  the  city  and 
the  port  of  New  Orleans  with  reference  to  the  question  of  blockade.  If 
not,  then  this  languag«',  marking  so  clearly  the  dilVerence  between  the 
two  things,  and  dwelling  upon  the  fact  that  though  the  city  was  occu- 
pied by  the  Federal  forces,  a  very  large  part  of  the  port  was  not  so  occu 
pied,  was  itlle  verbiage,  inje(;te(l  into  the  opinion  for  no  purpose  unless 
it  may  have  been  to  intjrease  its  volume! 

I  think  the  Chief  Justice  was  correct  in  supjiositig  that  the  diO'erence 
Itptween  the  city  and  the  port  was  of  practical  importance  in  the 
case.    A  little  consideration  will  make  this  (juite  apiiarent. 

No  rebel  military  force,  it  is  true,  occupied  that  part  of  the  port 
(the  right  baidi  of  the  river,  many  miles  in  length)  which  was  not  occu 
pied  by  the  United  States  on  the  4th  May,  1802;  but  it  was,  de  facto, 
territory  of  the  rebel  belligerent,  nevertheles.s.  Trade  there  was  trade 
with  the  enemy,  to  prevent  which  is  the  lawful  purpose  of  blockade. 
It  is  not  necessary  to  the  lawful  blockade  of  an  enemy's  port  that  the 
enemy  should  hold  it  by  the  presence  of  a  military  force.  tSuppo.se,  then, 
that  on  the  4th  ^lay,  1801*,  the  Circassian  had  steamed  into  the  port 
with  a  view  to  discharge  her  cargo  at  any  landing  on  the  right  bank  of 
the  river,  within  the  port,  rebel  merchants,  non-cond)atants,  beingready 
to  receive  it  there  ami  transport  it  into  the  interior,  no  portion  of  the 
goods  being  contraband,  by  what  right,  save  that  of  blockade,  could 
the  Federal  fleet  have  interfered  to  prevent  it  ?  The  i)Osition  and 
strength  of  that  fleet,  it  is  true,  enabled  it  to  capture,  without  fail,  every 
vessel  which  might  have  attemi>ed  su(;h  a  thing;  but  this  physical 
ability  to  capture  di<l  not,  per  se,  confer  tlu^  right  to  exeniise  it ;  nor 
(lid  it,  per  sv,  einl  the  blockade.  It  is  said  that  a  municipal  regulation 
might  have  been  enacted  prohibiting  such  importations  or  controlling 
them;  and  in  execution  of  su<'h  an  enactment  the  force  at  hand  coidd 
have  been  employed;  but  this  is  no  relief  from  the  dilemma.  The 
right  by  municipal  regulations  to  clo.se  rel>el  ports  and  render  trade 
with  them  unlawful,  was  claimed  by  the  United  States  very  early  in 
the  rebellion.  It  was  jiroposed,  but  the  right  to  do  so  was  denie<l  by 
(Jreat  Britain  and  other  neutral  nations,  an<l  its  exercise  was  forboriu> 
iu  deference  to  their  protests.  Even  in  the  argument  tor  the  <!laimant  in 
these  cases,  the  right  of  the  United  States  to  exercise  sovereign  rights 
(and  belligerent  rights  at  the  same  time)  against  the  rebels  to  the  preju- 
dice of  neutrals,  is  earnestly  combatte<l  by  a  gentleman  who,  as  a  writer 
upon  public  law,  stands deserve<lly  high  as  an  authority,  and  who,  in  his 
published  works,  had  before  expre.s.se<l  tin?  same  oi>inion.     Whatever 


■W: 

'"Li 


if 


Am 

^  •'  'I 

m 


2 


r>2 


AMKhlCAN-IJKITIsn    CLAIMS    COMMISSION. 


iiijiy  l»o  true  as  to  tliat,  it  is  voiy  ccrtaiti  tbat  (Ireat  Jititaiii,  liaviii;: 
<;()iitril)iit«'(l  more  than  any  other  nation  to  iridace  the  United  States  ti) 
forbear,  by  denying;  the  ri<^ht,  eannot  now  fairly  chiiin  for  her  snbjects 
tlie  benefit  of  a  principle  vvliie.h,  at  the  time,  slie  so  stontly  (h'nied. 
Municipal  rejjnlations  prohibiting  neutral  imi)ort  trade  with  any  part 
of  the  port  of  New  Orleans  not  in  Federal  possession,  would  have  been 
as  obnoxious  to  (Ireat  Britain  as  if  a  like  attempt  liad  been  made  at 
tha*^  time  eoncernin};  Mobile,  Charleston,  or  Savannah.  The  prineiplc 
which  woidd  have  justified  it  in  the  one  ease,  wouhl  have  maintained  it 
in  all. 

If  the  consideration  of  the  case  left  it  doubtfid  whether  the  judf^niont 
of  the  Suineme  Court  was  in  aeeordane*;  with  public  law,  it  would  be 
our  plain  <luty,  aecordiuff  to  all  authority,  to  disallow  these  <!laims.  So 
much  deference  in  a  case  of  doubt  is  due  to  a  deliberi'itti  imlgmont  of  a 
court  whose  iniei)endence,  impartiality,  and  learnini;'  has  jjlven  it  a 
character  in  (Ireat  Britain  not  less  lofty  than  it  possesses  at  liorie. 

But  I  do  not  doubt.  Comments  and  .'rititjisms  upon  thejud}>nient  ot 
the  court  had  fallen  nn«Ur  my  eye;  trustin^jf  to  which,  I  confess  1  had 
been  somewh  ;  impressed  Nvith  serious  doubts  (to  say  the  least)  of  the 
lejrality  of  tiie  condemnation.  But  a  very  careful  study  of  tlu>  case 
shows  that,  in  makin}»'  such  criticisms,  no  a(tcount  has  been  taken  of  the 
imimrtant  fact  that  tlie  possession  of  tiie  United  States  forces  at  New 
Orleans  did  not  extend  to  the  v/hole  port  when  the  ship  was  sei/.ed ;  n<i 
such  entire  possession  beiuj;  anywhere  directly  asserted.  That  the  er 
tor  is  one  of  inference,  resulting;  from  the  fact,  doubtless.,  that  the  wiilcr 
area  of  the  port,  as  contradistinj^uished  from  the  city  of  the  same  name, 
lias  usually  escaped  attention.  J  t  follows,  therefore,  that  the  princii>U' 
suppose<l  to  be  violated  by  the  court  was  really  not  violated  at  all,  ami 
that  the  question  was  not  that  which  has  bten  s'ttnetinu's  supposed, 
it  is  not,  I  may  hope,  improper  to  say  that  the:  best  care  and  Judj; 
ment  whi<'h  I  am  abh;  to  brinj;"  to  the  consideration  of  the  (^ase  has  re 
suited  in  a  clear  (MUiviction  that  t'  condemnation  of  the  Circassian  was 
<'orre(!t. 


O. 

itpiniim  o/'  Mr.  ('i»»i)ni,i.s!{>inr   Frazer  in  flu'  a^sts  of  tlir  linj/uc,  the  Mint 
imntdi,  (iiut  the  IIHjn.,  Xos,  UMJ,  ."il."),  aiui  tb".     {Sn'  jk  \'>'-i,  untf.) 

Tlie  allowaiu'c  «tf  prospe(^tive  earnin/.':s  by  vessels  was  «le!iie<l  by  the 
iribnn;.!  at  (I«'neva  iiintiiiinoi(nljif.  it  is  not,  so  far  as  I  am  aware,  ■dlowei! 
by  tii«'.  municipal  law  of  any  civiliz^'d  iiation  anywhere.  The  reason  i^ 
obvia'is  and  universally  ret.H»<>ni/ed  amoi'  jurists.  \(,  is  not  possible  tn 
ascertain  such  earnings  with  any  appntvimatiru*  to  certjuinty.  Then- 
are  a  thousand  uidvuown  continjjencies,  the  happening  of  any  of  which 
will  render  incorrect  any  estimate  of  them,  and  hetu'e  result  in  injustific. 

Who  can  siiy  that  the  Monmouth  would  have  reache<l  Savannah  at 
all  1  That  she  I'ould  have  procuied  a  cargo  of  cotton  at  '^d.  per  jtound. 
the  lowest  freight  in  pro«)l ;'  Who  <'an  -v.y  that  she  would  ha\c  goi 
better  or  as  good  rates  as  that  J  NN'hy  could  she  have  done  l)ctter :' 
There  is  no  reason.  Who  <ran  say  that  she  could  have  lieen  laden  i«nti 
sailed  before  the  blockade  would  have  stopped  her  f    The  witnesses  d<> 


AGENTS    KEP<>RT. 


not  say  so,  bin  ojiiy 


ly  '-if  she  had  mot  no  (V'tention  or  accident."  (,'au 
tliis  coiniuissioii  say  so  ?  It  is  i)al|)able  tliat  we  can  oidy  conjecture, 
and  conjecture  it!  no  tit  basis  for  an  award  of  damages.  We  shouhl 
liave  had  evidence  more  satisfactory  from  the  claimant,  such  as  the  pre- 
vjiilinj?  rate  of  chaiter  of  such  a  vessel  at  the  time  and  phvce.  Under 
such  circumstanc«'s  we  are  left  to  estimate  the  vabo  of  the  vessel  for 
retiii'ticargo  upon  very  unsatisfactory  evidence,  i  base  my  estimate 
npou  Bottou-freif^ht  at  '{d.  per  pound,  Ifcause  there  is,  in  my  judgment, 
ii  greater  probability,  iii  view  of  all  contingencies,  that  this  is  above 
ratlu'r  than  below  a  just  estimate. 

These  observations  apply  also  to  the  case  of  the  lioyne,  heretofore 
decided.  I  now  «loubt  whether  this  is  not  too  much.  It  assumes  that 
each  contingency  would  have,  been  avoidetl,  the  happening  of  any  one 
of  whiclj  would  have  prevented  this  vessel  from  doing  as  well  as  somi* 
others;  and  this  assumi»tion  in  favor  of  the  claimant  is  «|uite  as  mucii 
iis,  in  myj'idguMMit,  we  may  nnilce,  with  due  regard  to  public  'aw,  as 
declared  at  Geneva,  an<l  to  tiieprinci[)les  of  justice,  as  recugni/.  u  every- 
where. 

The  Monujouth,  (Xo.  'Mii.)  The  President,  by  proclamsition  of  April 
ii>,  1H01,  gave  public  notice  of  ai)urpose  toldockade  the  ports  of  H;»uth 
Carolina,  Georgia,  a  ul  of  the  States  sourh  thereof,  aiuiouncing  that  a 
"competent  force  irould  be  posted  "  for  that  purpose.  The  pro<lamation 
amiounced  further  that  any  vessel  sJi>proaching  or  attempting  to  leave 
"either  of  said  ports''  with  a  view  to  violate  "  such  bh»ckade,"  would  be 
warned  bv„the  «'omnunMler  of  "  one  of  the  bhickiuling  vessels,'' who 
would  indorse  sn;di  wanting  and  the  <late  thereof  on  her  register,  and 
any  snbsetpient  attempt  of  the  same  vessel  to  enter  or  leave  "//>r  hlork 
uik'd  porf''  (certainly  meaning  every  port  coveviMl  by  the  warning)  would 
result  in  capture,  it  <"annot  be  supposed  tliat  it  was  inteinled  that  this 
warninu'  was  to  be  r.'peateil  off  each  poit  bloekadcd. 

In  these  cases  tin*  warning  was  by  a  vessel  blo<'kading  Charleston 
and  oil  that  i)ori  be/ore  tlr.'re  was  any  actual  bkxdvading  force  otf  ►Savan- 
nah, and  was  indoised  thus: 

I!  )ar(li'tl,  iiiforiiiol  oC  tlif  hlockmlc,  iiiul  wanu'd  oil'  Mm  «'<iust  of  all  tin-  Soiitlicrii 
StiUt'H  hy  tlu'  I'uiU'il  Slates  straiasliip  .\iii;;ara,  May  I'i,  \^l\\. 

i:i»\VAW;i('.  I'OTTKK'. 
Lii  iitnunil  I'liilid  Slaitt  A'oc//. 

This  warning  was  not,  ^nid  is  not.  disavowed.  It  must,  therefore,  hav<' 
the  .same  etlect  as  if  the  olliecr  giving  it  had  been  expressly  instru(!te«l 
liy  the  highest  authority  to  give  it  in  that  form.  It  must  be  regarded 
as  the  act  of  tiie  I  nited  States,  and  was  notice  to  the  vessel  that  all  the 
Southern  ports  embraced  within  the  proclamation  were  then  actually 
l»loeka«led,  and  that  any  subseipient  atti-mpt  of  the  vessel  warned  to 
enter  any  of  such  ports  would  result  in  capturt^ 

A  vessel  bound  for  Savannah,  thus  warned,  it  is  true,  might  have  dis- 
regarded the  warning,  and  could  lawfully  hav«?  proceeded  to  Savannah 
itecause  there  was  not,  in  fact,  any  for<M'  blockading  that  port.     If  cap 
itired  si.ii  wouhl,  un«iuestionrtl>ly,  have  been  discharged  with  damag«'s 
l>.y  the  i)rize  court. 

lint  must  the  neutral  merchantman  run  the  hazard  of  attempting  to 
enter  Savannah  ?  Had  she  fmind  there  an  actual  blockade  and  been 
eapturetl,  her  previous  warning  would  have  been  good,  and  her  <'on 
deimuition  an  good  prize  would  have  been  certain.  Tliero  is  in  the 
tacts  every  elenn^nt  of  a  strong  (»bligatiou  upon  the  United  States,  and 
ill  favor  of  a  vessel  which,  on  the  faith  of  the  warning  given,  fully  ir 


-4 


254 


AMERICAN-BRITI.SII    CLAIMS    COMMI8SION. 


spected  it,  and  by  so  doing  sufi'ered  loss,  to  make  good  that  loss.  Tlu' 
neutral  vessel,  ignorant  as  to  the  facts,  had  a  right  to  act  upon  the 
warning;  and  I  am  compelled  to  hold  that,  in  doing  so,  she  acted  with 
all  prudence  and  propriety,  and  that,  judging,  as  her  captors  must  at  tho 
time,  any  other  course  would  have  been  rashness  and  folly.  A  regard 
for  the  interests  of  his  owners,  as  well  as  respect  for  the  United  States, 
required  that  the  master  should  abandon  any  purpose  to  enter  Savun- 
nail. 
These  observations  apply  also  to  Xos.  21 G  and  4G7. 


,  ,ii 


Iloss.    Till- 

upon  the 

icted  with 

mst  at  tli(> 

A  i-egard 

ted  States, 

Iter  Savan- 


riSTDE 


'-II 


A. 

Adam,  W.,  r«.  I ' iiitod  States.  No.  72 l")'.* 

Adela,  IJiitiHli  steamship 12H 

Adt'lso,  British  wdioojicr 1)2 

Adlam.  G.,  r«.  United  SI ates,  No.  40 14 

AiKhnrfh,  Briti.sh  schooner ;H 

Alexander,  If.  S.  C.  A.,  executors  of,  rs.  United  States,  No.  A'> !'> 

Amelia,  liritisli  ship 90 

Appendix I7u-2r>4 

Argonaut.  British  schooner S)l 

Ariel,  British  brig <)0 

Ark\vright,T.,r«.  United  Slates,  No.  :?02 47-49 

Arrest  and  iniprisoninent,  claims  for  wrongful JSl-H? 

Ashley,  W.  0.,rs.  (ireat  JJritain,  No.  19 ;{0-:V> 

Ashton,  W.,  m.  United  States,  No.  :«:> 09 

Atkinson.  (".,  c*.  United  States,  No.  '.\S0 ;Vi 

Award  of  coninii.ssion.  final '229 

A  w;inls  against  tlie  Unilcsd  .*>tates,  detailed  aeeounl  of 8 

B. 

IJailey  &  Ueethiiiii  !•.•<.  United  States,  No.  314 ir.4 

Rar.lay,  A.,  rx.  United  States,  No.;') 11-14,.''0 

ISarlow,  B.,  receiver,  Are.,  rs  (Jreat  Britain.  No.  4  2\-'M) 

Barrett,  K.  A.,  vs.  United  States,  No.  18 l.')4 

Karriin,  Forbes  \  Co.,  rx.  United  Slates,  No.  ill  4 10)4 

Barry,  T.,  rx.  United  States,  No.  127 t)9 

Bennett,  W.  H.,  r«.  United  States,  No.  1;17 4.'> 

Bevitt,  .J.  .J.,  rx.  United  State.s,  No.  104 t)8 

Bigland,  A.,  rx.  United  Slates,  No.  199 BU 

Biiiney,  .1.  \V.,  rx.  United  SUites.  No.  ;{.">2 <>3 

IJIanche, claim  for  destruction  of  cargo  of  Ihilish  steamship .M 

Booth,  W.  B.,  rx.  United  States.  No.  14:? 72 

Borron,  .1.,  rx.  United  .Slates,  No.  144 r»2 

f<ostock,  K..  rx.  United  States,  No.  V.i'.i 4.% 

(!<i\vden,  K..  rx.  United  States,  No.  419 H4 

liowie,  K.  L.  II..  rx.  United  Slates,  No.  :VH) 17 

Hoyne,  British  ship... , ir>0 

I5iain,  V..,rx.  United  States.  No.  447 fil 

Brainerd.  A,  ().,  rx.  Cwnt  Britain,  No.  9 21-:tO 

Brailhwaite,  J.,  rx.  United  States,  No.  HI 42 

Brand, .1.  U.,  rx.  United  States,  No.  1-0 \x 

Breck  &  Wetlierhee,  r«.  (Jreat  Jtritain,  No.  H 21-:«t 

Brook,  8.,  r«.  United  States,  No.  IK) 4:i 

Brown  A  Sharj),  rx.  Unit c«l  States,  No.  ',\',\ r)2 

Buck,  K.  P.,  and  others,  r».  (Jreat  Britain,  No.  lit -12 

Burton,  <).  A.,  receiver,  Ac.,  rx.  (Jreat  Britain,  No.  \'.\ 'il 

ihish,  F.  T.,  and  others,  rx.  (Jreat  Britain,  No.  11 32 


-     %.■ 


im 

ll 

If  1 

!  1 

i!^  :i 

!:8 


f2i  * 


•Joi; 


INDEX. 


C. 

(Jairiis,  .F.,  \  Co.  ex.  I'nilrtl  States,  No.  :W .V,' 

Cali-ntta  salt  petit!  caHcs '\'2-'.]^ 

dissi'iitiiifjf  opinion  of  Coinitiissiont-r  I'la/iT  in ti'M> 

Caldttrwooii,  M.  M..  i-h.  rnitt-d  States,  No.  'M\0 17, 1H,;V^ 

Canipbcll,  A.  E.,  &  L'(».,  r».  I'nitod  States,  \o.  "i'.HI IC.:! 

CarliHle,  .f.  M..  appointed  connMid  of  Her  Ilritannio  Majesty i; 

Cannult,  J.  W.,  vs.  Knited  States,  No.  Kl :>•> 

Carniody,  .1,,  vx.  I'nited  States,  No.  K') (17 

Canty,  (i.  F.,  r«.  I'nited  States,  No.  44;J f*:, 

Circassian,  Britisli  steauisliip 141 

disscnlinji  opinion  of  Coniniissioner  Fra/er  in y'lii 

Claims  of  AnierieuM  ititi/ens  against  Great  Ltritain,  schedule  of '216, '2IT 

index  to  sumo 5>"J7 

amount  and  disposition  of 

classitieation  of 8,  It 

detailed  report  of 21-41 

Uritisli  snWJects  iii^uinst  United  State.s,  schedule  of 180-21.'. 

index  to  sumo '2lS,)i2' 

amount  and  tlisposition  of 

elassilication  of !• 

detailed  rejiort  of 41-17:! 

Cleary,  W.,  r«.  Tniled  .States,  No. -J-iU 45,  Kl-J 

Clon)j;li,  L.  U.,  administrator,  Ac,  i'**.  (jireat  liritain,  No.  14 21 

Collie,  Alexander,  cm.  United  States,  No.  ;{7(i r»'2 

Collie,  Gcorjje,  r».  United  States,  No.  458 iri 

Colnmliia,  S.  C,  destruction  oi  property  at ^tt' 

Commission,  {general  history  of  proceedings 8-11 

organization  of «>,  T 

C<mfederate  delit,  ehiini  of  liability  for l.')4-1.7J 

Corti,  Count  Ijouis,  named  eommiasioner  Ity  both  governments  eonjoiutly ti 

re(| nested  to  preside 7 

Cotton,  claims  for  dt!stru<'tion  of,  in  insurrectionary  States .V.?-."!.'. 

t'ox,   II.  E.  and  A.,  f«.  United  .States,  No.'J'iU Til 

Cox,  Thomas  C,  appointed  secretary 7 

Crawford,  .1.  I.,  r«.  United  States,  No.  7!> (i7 

Crow  ther,   L.,  vh.  United  .States,  No.  'M)2 fl 

Crntcliett,   .1.,  f«.  United  .States,  No.  4 H 

Cumniing,  .1.,  i'm.  United  .states,  No.  1)4 •>'•> 

Curtis  iV  I'eabody  vn.  tJreat  liritain.  No.  Im :i'.' 

D. 

])ashing'>Vave,  Mritisli  brig Il<> 

Davidson,  U.,  m.  United  .States,  No.  (Ui 4:'. 

Dean,  1'.  (J.  H.,  /«.  United  .States,  No.  4<)r> b.'> 

1).  F.  Keeling,  British  schooner 1 1 'J 

Dolphin,  HritisU  steamship '••■•.' 

E. 

Eakin.   I{.,  r»t.  United  .States,  No.  IIH I.'i 

Echo,  British  schooner II* 

Ellsworth,  .1.  II.,  rx.  United  States,  No.  421 >^4 

Empress,  British  bark I2'> 

Eneas,  .1.,  r*.  United  Slatts,  No.  121) <>:? 

Everext,  C.  F.,   »•«.  (Jreat  Britain,  No.  l(t 21 


1    i1 


INDEX. 


257 


:w-:!- 

y:!(j 

17,  I8,r,t> 

lt;:i 


141 

y5ii 

.'216, 

'21T 

'2-.'r 

,- 

8.;» 

..  21-11 

.180- 

-'21.-. 

.'ilS, 

•2-27 

-.41 

-i::: 

..45, 

ltl-2 

•21 

r.-j 

:.-^ 

511 

..     ,"-11 

•  1,7 

.154- 

-L7J 

(i7 
fl 

n 


III) 
4:: 

lit; 


15 
117 

>-4 
1'25 

(■>:; 
•21 


F. 

I'uge. 

Facer,  T.  II., '•«.  Unitoil  States,  No.  '203 70 

Field,  M.,  admiiilHtratrix,  &c.,  r.v. Oreat  Hiitain,  No.  5 21 

First  National  Bank  of  St.  .Vlbaus  m.  (iroat  Britain,  No.  1 21 

Forbes,  J.  C,  vs.  United  Status,  No.  :100 52 

Forwood,  W.  B.,  vs.  United  States,  No.  .VM 84 

Frazer,  Hon.  .1.  S.,  named  commissioner  by  President  of  tbo  I'nited  Statec ti 

opinions  delivered  by,  in  the  foUowinjj  cases  : 

abandoned  and  captnred  property  cases •2:<7 

Alexander's  case,  No.  45 Ki 

Calcutta  saltpetre  cases 2:10 

Circassian 2.50 

Halley's  case,  No.  205 \    20 

Hauua's  case.  No.  2 239 

Henderson's  case,  No.  41 234 

Mrs.  Brain's  case.  No.  447,   and   }  qjo 

Mrs.  Sherman's  case.  No.  395.      ^   

On  non-appeal  in  prize-cases 243 

Rahniiug's  case.  No.  7 241 

Rio  Grande  cases 24(5 

Saint  Albans  raid  cases 30 

Warned  off  cases 252 

Fuller,  W.  A  E.  D.,  rn.  Great  Britain,  No.  3 21 

G. 

Georgia,  British  ship 139 

Qeziena  Heligondn,  cargo  of  Dutch  brig 127 

01over,H.,  i;«.  United  States,  No.  134 70 

Grace,  M.,  va.  United  States,'No.  132 45 

Granite  City,  British  ship 124 

Grant,  T.,  v/>.  United  States,  No.  211 95,102 

Grant,  Thomas,  tobacco  of,  (prize) 95 

Grayson,  Ann,  admiustratrix,  «fcc.,  rn.  United  States,  No.  291 19 

Gribble,  J.,  m.  United  States,  No.  IIG 14 

Gurney,  Right   Honorable  Russell,  named  as  commissioner  by    Her  Britannic 

Majesty G 

H. 

Haddon,  S.  II.,  vs.  United  States,  No.  107 52 

Hale,  Robert  S.,  appointed  agent  and  counsel  of  the  United  States 7 

letter  of,  to  the  Secretary  of  State 3 

Hall,  K.,  r«.  United  States,  No.  318 80 

Halley,  J.  B.,  administrator,  &c.,  i>.  United  States,  No.  205 19 

Hanua,  J.  H.,vs.  United  States,  No.  2 .')fi 

opinion  of  Commi-ssioner  Fra/er  in 234 

Hayes,  Misses,  r«.  United  States,  No.  100 45 

Hiindorsou,  H.,  r«.  United  States,  No.  41 44 

dissenting  oi>inion   of  Commissioner  Fra- 

zer  in 234 

Hiawatha,  British  bark 130 

Hilja,  British  bark 151 

Hill,  M.S.,  r».  United  St  atcs,  No.  198 74 

Hodges,  W.  R.,  r«.  United  States,  No.  354 HW 

Howard,  Henry,  appointed  agent  of  Her  Britannic  Majesty fi 

Hubbell,  W.  W.,  t«.  Great  Britain,  No.  17 40 

Huntington,  C.  II.,  r».  Great  Britain,  No.  2 21 

17  H 


"  .;  .it 


i'^'^'^ 


'     ■*:'■ 


IIP' 


m 


258 


INDEX. 


I. 

Pngp. 

Intorost,  allowaiico  of 21 

Irvin,  S.,  &  Co.,  iv.  Uuitud  Statt'8,  No.  ;J22 .'>S 

l«abol,  British  hris Ill 

Isabella  Thoinpsuu,  British  brig ICt 

J. 

Jackson,  S.  B.,  (•«.  Uiiitctl  States,  N». 'ir>.') 70 

Jacobs,  D.,  !•«.  Ignited  States,  No.  2',W 'l.'i,  ;'>•* 

Jaiio  Campbell,  British  schooner 1  is 

Jariuan,  S.,  vs.  United  States,  No.  41H hj 

Joluison,  C.  J.,  execnlrix,  &c.,  rs.  United  States,  No.  441) 17'J 

Jniisdictiou  a«  to  person,  <inestiou8  relating  to 1 1-'<>(J 

snbject-mat  ter fil 

in  prize-cases,  as  aflected  by  want  of  appeal  to  court  of  ultimate 

resort 88-W 

as  affected  by  want  of  appeal  to  court  of  ultimate 

resort,  opinion  of  Comnussioner  Frazer  upon 24 

K. 

Kator,  J.,  r».  United  States,  No.  11) 44 

Kno wles,  E.,  vs.  United  States,  No.  175 4'J 

L. 

Lafouo,  H.,  and  J.  T.  Lawrence,  vessels  of,  (prize) 127 

Lake  Erie  raid,  case  jjrrowiug  out   of 30 — :W 

Lane,  \V.  H.,  (•«.  United  States,  No.  i» 47 

Langdon,  S.  W.,  r«.  Great  Britain, No.  6 21—30 

Lavell,  B.,rs.  United  States,  No.  130 45 

La^Yrie,  Son  &  Co.,  i'«.  United  States,  No.  321 o^ 

Levy,  S.  G..  vh.  United  States,  No.  <>1 (ifi 

Lewis,  S.,  r«.  United  States,  No.  2S7 102 

M. 

Macaulay, .) .  A.,  vs.  United  States,  \o.  200 ,')l 

MeCabe,  E.,  vs.  United  States,  No.  107 74 

MoCann,  J.,  vs.  United  States,  No.  173 7:i 

McDonald,  A.  K.,  vs.  United  States,  Nos.  42  and  334. 52— Ti') 

McElhose,  J.  B.,  vs.  United  States,  No.  22.') 47 

Mellugh,  E.,  fs.  United  States,  No.  3.'>7 01 

McKeown,  R.,  vs.  United  States,  No.  4C3 87 

McMalion,  T.,  vs.  United  States,  No.  130 ,,    4.') 

McVey ,  J.,  vs.  Un i ted  States,  No.  20S 7' 

Martin,  J.  &  R.,  i-».  United  States^  No.  4;',4 .')1 

Matamoras,  lirilish  schooner 114 

Maxwell,  r. ,  vs.  United  States.  No.  3H5  170 

Miller,  W.  S.,  vs.  United  States.  No.  l.-)7 I'^O 

Milner,  I.,  vs.  United  States.  No.  207 , 

Minnie,  British  brig 9"* 

Miscellanrous  British  cases 153 — 173 

Mogridge,  J.  F.,  vs.  Ignited  States,  No.  345 10 

Money,  U.  H.  &  J.  W.  B,  i/i.  United  States,  No.  321 108 

Monmoutli,  British  ship '.       150 


114 


79 

148 

\7-2 
11-V>U 

;:i 

88-9i 
24 


44 

4'.t 

127 

30— :}2 

47 

yi— 30 

4'. 

~}*^ 

m 

i(;2 

r.i 

74 

7;> 

52—0:. 

17 

(il 

«7 

.,    45 

77 

f)! 

114 

, 170 

i';i) 

If* 

....ir.:i— I7:i 
■  ■  i(i 

,..    ..       1()8 

..  ' .  '  mo 


INDEX. 


259 


Pnge. 

M.  S.  Perry,  alias  Siilvor,  BritiHh  stoanuT 9,  123 

Mniirofs,  J.  T.,  v^.  United  StHtes,  No.  2:{r» 78 

Miirtu,  J.  rs.  Uuitutl  States,  No.  195 73 

N. 

Napior,  British  brig 88 

National  character,  priiiciplos  control  ling  iinestioli    of 11 — 20 

Nelson,  H  B.,  rn.  ITnitotl  States,  No.  140 47 

Nicolson,  C.  J.,  rx.  United  State.**,  No.  'io'.\ 77 

Nolan,  J.  M.  1*.,  ix.  United  States,  No.  272 79 

Nolan,  M.,  rv.  United  States,  No.27:i 80 

O. 

O'Connor,  V.  O'B.,  vs.  United  States,  No.  404 58 

O'Hara,  A.,  r«.  United  States,  No.  135 45 

O'Malligau,  P.  J.,  vs.  United  States.  No.  47»> 74 

P. 

Pacifiquo,  British  schooner 95 

Parr,  J.  F.,  vs.  United  States,  No.  285 80 

Patrick,  W.,  vs.  United  States,  No.  97 68 

Pearl,  British  steamship 115 

Peterhort',  British  steamship 136  * 

Pratt,  E.  W.,  vs.  United  States,  No.  6 62 

Prince  Leopold,  British  schooner 91 

Prize  Cases 87-150 

general  statement  of  nninber,  anionnt,  &.c H7, 88 

jnrisdictiou  in,  as  aflectiHl  by  want  of  ap|>eal  to  conrt  of  nltimate 

res<»rt ' 88-92 

opinion   of  Commissioner  Frazer  in 243 

Property  destroyed  by  rebels,  i;lainis  for 56-60 

injnred  or  destroyed  by  United  States  forces,  claims  for 49-55 

taUon  and  apjtropriated  to  nse  of  United  .States,  claims  for 41-49 

under  abandoned  and  captured  property  act,  claims  for 47-49 

opinion  of  Commissioner 
Frazer  in 237 

K. 

Uahming,  J.  C,  vs.  United  States,  No.  7 63 

i>pinion  of  (.'(unmissioner  Frazer  in 241 

Heading,  F.  K.,  vs.  United  States,  No.  43 -  -        65 

li<  dgate,  S.  J.,  ••<.  United  States,  N(.  420 84 

Uiley,  T.,  vs.  United  States,  No.  192 74 

liio  Grande  cases,  the 100-1 14 

opinion  of  Commissioner  Frazer  in 246 

Uoai'i,  J.  \V.,  vs.  United  States,  No.  154 159 

"ulos  of  the  commission 177-179 

8. 

S;i>nt  Albans  raid,  cases  growing  out  of 21-30 

Sii'lie  Mageo,  British  bark 98 

Sul vol . alias  M.  S.  Perry,  British  sti^aiuer 91, 123 

Sandeis  &,  Sims'  vessels,  (prize) 116 

Surah  "   rr,  British  brig 91 


1$^ 


260  INDEX. 

Science,  British  baric 112 

Scott,  J.  W.,  va.  United  States,  No.  22(5 , Ifi,  78 

Sharpe,  J.  W.,  r«.  United  States,  No.  92 15 

Shaver,  J.  I.,  vs.  United  States,  No.  51 • fifi 

Sherman,  E.,  va.  United  States,  No.  359 (51 

Ship  cases,  index  to 227-229 

Sir  William  Peel,  British  steamship 100 

Smith,  H.  R.,  i'«.  United  States,  No.  461 H(] 

Smythe,  W.,  vs.  United  States,  No.  1533 51 

Springbok,  British  bark 117 

Sterling,  T.,  t'«.  United  States,  No.  12 45 

Stewart,  J.,  ra.  United  States,  No.  339 60 

Stott,  J.,  va.  United  States,  No.  271 66 

Stovin,  J.  C,  1-8.  United  States,  No.  23 64 

Survival  of  claims  for  personal  injuries 61 

opinion  of  Commissioner  Frazer  in 240 

Syme,  J.,  administrator,  &c.,  vs.  Uuited  States,  No.  139 70 

T. 

Tooraen,  M.  M.,  v«.  United  States,  No.  184 17 

Tovell,  J.,  vs.  United  States,  No.  446 8(> 

Treaty,  articles  of,  relating  to  commission 175-17? 

.Tripp,  J.  W.,  v».  Great  Britain,  No.  15 38 

Turner,  E.  W.,  v«.  United  States,  No.  34 47 

Turner,  J.,  vs.  United  States,  No.  44 55 

V. 

Vernon,  J.  M.,  vs.  United  States,  No.  364 81 

Volant,  British  brig HI 

W. 

Wales,  T.  B.,  and  others,  vs.  Great  Britain,  No.  16 32 

Walker,  A.  R.,v«.  United  States,  No.  13 153 

Ward,  T.,  v«.  United  States,  No.  1 41 

Warned-oflF  cases,  the 150-153 

opinion  of  Commissioner  Frazer  in 252 

Watkins  &  Donnelly,  administrators,  &c.,  v«.  United  States,  No.  329 45 

Weeks,  J.  S.,  vs.  Great  Britain,  No.  7 21 

Wilkinson,  J.,  v«.  Uuited  States,  No.  28 42 

Will-o'-the-Wisp,  British  ship 92 

•  Wooil  &  Hey  worth  vs.  United  States,  No.  103 53 

Y. 

York,  claim  for  destruction  of  British  ship 51 

o 


fifi 


IP' 


112 

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<i  V.  ■';'  M 


l.-C0RRE8P0NDEiNCE  BETWEEN  Mil.  FISII  AND  SIR  EDWARD 
THORNTON,  PRELIMINARY  TO  THE  NEGOTIATIONS. 


>i 


ipFi 

■  s^ 

1 

■|f^; 

1*  ■ 

si; 


I.-CORKKSIM)NI)EN('K  HKTWKKN  MR.  FISH  AND  Sill  KDWAllD 
THORNTON  RKLATIVK  TO  THK  FORMATION  OF  A  IIIOH 
COMMISSION. 


1.  Sir  FMirard  Thornton  to  Mr.  Fixh. 

\VAh'iiiN(JT()N',  Jannttry  :Hi,  1871. 

HiK :  III  complianc*^  with  an  iiistruetioii  wliioli  \  liiiAo  reccivoil  Iroiii 
Hiirl  (Iranvilh',  1  liavc  the  honor  to  stall;  that  hoi-  .Majosty's  governiuoiit 
(le«*in  it  of  iniportaTUM'  to  the  -rood  r.'hitiont*  'vliich  they  aio  cvtT  anxiouH 
sliouhl  subsist  ami  In-  stron/^'vni'J  lu'twoen  the  Uniti'd  States  and 
(ireat  JSritain,  that  a  trieiidly  and  coiaith'te  uiMhTstandin;;  sliouhl  be 
come  to  between  the  two  jfovernnients  as  to  tiie  extent  ot  tlie  rijfhts 
which  belonj;  to  the  citizens  of  the  United  tjtates  and  l\vv  Majesty's 
subjects,  respectively,  with  reference  t'>  the  lisherit s  ,»u  the  coasts  of 
Her  Majesty's  possessions  in  North  Ainerica,  ami  as  to  any  other  ques- 
tions between  them  which  alVect  the  relations  of  the  liiiled  States 
toward  those  possessions. 

As  the  consideration  of  these  matters  would,  however,  involve  in- 
vestifjations  of  a  somewhat  comi)licated  nature,  and  as  it  is  very  desir- 
able that  they  should  be  thorou;;hly  examine*!,  I  am  din'cted  by  Lord 
(Iranville  to  propose  to  the  (lovernment  «)f  the  United  States  the  ap- 
liointment  of  a  Joint  hi<,di  commission,  whi(;h  shall  be  composed  of  nu>m- 
bers  to  bt)  named  by  each  government;  shall  liold  its  sessions  i».t 
Washington;  and  shall  treat  of  and  «liscuss  the  mode  of  settling  ihe 
dillerent  questions  which  have  arisen  out  of  the  li.slieries,  as  well  as  all 
those  which  allect  the  relations  of  the  United  States  toward  Her 
Majesty's  possessions  in  North  America. 

1  am  contident  that  this  proposal  will  be  nu't  by  your  Ciovernment  in 
the  same  cordial  spirit  of  friendship  which  has  induced  ller  Majesty's 
government  to  tender  it,  and  I  cannot  doubt  that  in  that  case  the 
result  will  not  fail  to  contribute  to  the  nuiintemmce  of  the  good  relations 
between  the  two  countries  which  I  am  convinced  the  Government  of  the 
United  States,  as  well  as  that  of  Her  Majesty,  equally  have  at  heart. 

I  have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  most 
obedieut,  humble  servant, 

KDWAIH)  THOllNTOX 

Hon.  Hamilton  Fi.sir,  tt-c,  tCc,  dr. 


ii.    . 


•fl 


"I'     "■  . 


I 


2.  Mr.  Fish  to  Sir  lAhcard  Thornton. 

Depaktment  of  State, 
^  Waahinyton,  January  30,  1871. 

Sib  :  1  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  Jan- 
nary  20,  in  which  you  inform  me,  in  compliance  with  instructions  from 
Earl  Granville,  that  Her  Majesty's  government  deem  it  of  importance 
to  the  good  relations  which  they  are  ever  anxious  should  subsist  and  be 
strengthoned  betweeu  the  United  States  and  Great  Britain,  that  ft 
friendly  and  complete  understanding  should  be  come  to  betweeu  the 


200 


GllNEHAL    API'ENDIX. 


11' 


^ 


two  jjovernmoiifs  as  to  tli«  extent  of  the  rights  which  belon;^  to  the  cit- 
izens of  lii(^  ITnilril  States  an<l  Her  Majcst,v\s  sniijects,  resfu'ctively. 
with  rcfrreiiee  to  the  (isheries  on  the  coast  of  Her  Majesty's  possessions 
in  North  America,  and  as  to  any  other  (|Ucstions  between  tin'sa  wiiieii 
alfetit  the  n  latio::;-i  of  the  United  States  toward  tht)se  possessions;  and, 
further,  tliat  as  th<»  consiih-ration  (»f  these  jpiestions  wouhl  involve  iii- 
vesti;;ations  of  a  somewhat  comjiheated  nature,  and  as  it  is  v»'ry  (h-sir- 
abh;  that  tliey  shouhl  l)e  thorouj^hly  examim-*!,  yon  are  dire<'ted  l>y  ]jor<l 
(Jninville  to  propos(i  t<j  liie  (loveinment  of  tlui  United  Statt's  the  ai>- 
pointment  (»f;t. joint  liij^ii  commission,  which  .^h.ili  In;  comi)osed  ol  nu'iu 
hers  to  be  named  by  ea<'h  ;;overinnent ;  shall  hold  its  sessions  at  Wash- 
ington ;  and  shall  tr(v"t  of  and  discuss  the  mode  of  settling  the  ilillei-tMit 
(juestions  whicii  lia\e  jaisen  out  of  the  tisheries,  as  well  as  ail  those 
which  atfect  tlie  relations  of  the  United  States  toward  Her  ^Majesty's 
jiossessions  in  North  America. 

J  ha\(!  laid  ,>our  note  b<'lbie  the,  President,  who  instructs  me  to  «ay 
tliut  he  shares  with  Her  Majesty's  government  the  appreciation  of  the 
importance  of  a  *iiendly  and  C(Un]»let«^  nnderstainling  between  tlu^  two 
goveriiments  witli  reference'  to  the  subj<'ct«  8j)ecially  suggested  lor  the 
consitleration  of  the  proposed  Joint  higli  comnussion,  ami  he  fidly  rec- 
ogni/A  s  the  friendly  spirit  which  has  |)romple<l  tiie  p'oposal. 

The  I'nsident  is,  liowevt'r,  of  the  opinion  that  without  the  adjust- 
ment of  a  class  of  (piestions  m)t  alluded  to  in  your  not**,  the  prop«)se«l 
high  comii'ission  would  tail  to  establish  the  i>ernwinent  relations  an«l  the 
sincere,  sabslantia',  and  lasting  friendship  between  the  two  gc.vern- 
meiibs  wiiich,  in  ejuimon  with  Her  Majesty's  government,  lie  desires 
should  jirevail. 

Ii(^  thinks  that  the  removal  of  the  tlitfcrences  which  arose  during  the 
rebellion  in  the  I'nited  States,  and  which  have  existi'd  sinccthen,  grow- 
ing out  of  the  acts  committed  by  the  several  \essels  whieh  have  giviMi 
rhse  to  .lie.  claims  generically  Un.)wn  as  the  "Alabam.;"  claims,  wdl  al.so 
be  essential  to  tlic  restoration  of  cordial  and  amicable  relations  between 
the  two  goveinmeiits.  lie  direcits  me  to  .say  that,  slnaild  Her  Majesty's 
govei'Mment  icci'pl  (his  \iewofthis  matter,  and  assent  that  this  suh- 
ject  also  may  be  treated  of  i»y  the,  jMopo-sed  high  (iommission,  ami  m  ly 
thus  be  put  in  tin-  way  of  a  linal  am!  amicable  settlement,  this  (iovern- 
nuMit  will,  with  muci*  jth'asnre.  appoint  iiigh  commissionei's  cm  the  part 
of  the  United  Slates,  to  meet  tiiose  who  may  be  appointed  on  behalf  ol 
Jler  liajesty'.s  govertiment,  and  will  siiare  no  ellbrts  to  .secure,  at  the 
earli'si  praeticabic  moment,  a  Just  and  ami<'al>h^  arrangiunent  of  all  the 
•jiiestions  wiiich  now  unfortunately  stand  in  the  way  of  an  entir*^  and 
abiding  friomlship  b"tween  the  two  nations. 

1  iiave  the  honor  to  .  •    wiih  the  highest  consideratiivn,  sir,  your  obe 
dient  servant, 

HAMILTON  FISII, 

Sir  Kdw.mm)  Tiiounton,  K.  C.  P..,  cfr.,  il ,;.,  tic. 


iJ.  Sir  Echcard  Thornton  to  Mr.  Fish. 

Wa.shinoton,  Fchniarji  1,  1«7L 

Sii? :  I  hav<'  the  honor  to  ackm)wledge  the  re<'eipt  of  your  note  of  the 
;iO;h  ultimo,  and  to  otfer  you  my  siiurere  and  cordial  thanks  lor  the 
friendly  and  conciliatory  spirir  which  jiervades  it. 


GKNKKAL    AI'i'ENDIX. 


2fi7 


()  the  cit 
K'ctivoly. 
>H.st'.s.si«ins 
i'Ml  wliicli 
•lis;  juid, 
ivolvc  ill- 

vy  ilcsir- 
I  l*y  Lord 
s  llic  ;ij). 

<>r  iiu'iii 

at  Wasli- 

(iillV'jviit 

ill!  those 

Maji'isty'.s 

le  to  Hiiy 
oil  of  the 

thd  two 
(I  for  the 
I'ully  rec- 
ti adjust 
proposed 
s  and  the 

j;(»vei'ii- 
e  (lesirj's 

iiviuf;  the 
en,  j^ro  V- 
ve  {jfiviMi 
Will  also 
hetweeii 
Majesty's 

tilJM    Mlll- 

and  ni  ly 
I  (loveni- 
tlie  pan 
l)ehalf  ot 
e,  at  the 
jf  all  the 
ttire  and 

our  olte 

FISH. 


V,'ith  !vieren(!e  to  that  part  of  it  in  wliich  yon  stale  tluit  the  l'resi«lent 
thiidts  that  the  removal  of  the,  dillerenees  whi<;h  arose  diuin;;  the 
rebellion  in  the  United  States,  ami  which  have  existed  since  then,  {jnnv- 
iu'^  out  of  the  acts  eoniniitted  l»y  the  several  vessels  whieh  have  y;iveu 
rise  to  the  claims  <jenerally  kne.wn  as  the  "Alaltama'' <!laims,  will  also 
he  essentiel  to  the  restoration  of  cortl;  il  and  ainii-able  relations  between 
the  two  j;overninents,  I  have  the  h'/our  to  inform  you  that  I  have  sub- 
mitted to  ICarl  (Irain  ille  tlu^  opiiii  <n  thus  expressed  by  the  I'residcnt  of 
the  United  Slates,  the  I'liendliness  of  which,  I  be;,'  you  to  belic\e,  I 
fully  ai)preeiate. 

I  am  now  authorized  by  his  lordsh'p  to  slate  that  it  would  k'\<'  H«'i' 
^lajesty's  ^j-overuim-nt  i^Mcat  saiisfacti»>n  if  the  claims  conun<!".!y  known 
l)y  the  name  of  the  "Alabama"  claiuss  were  submitted  to  the  considera- 
tion of  thci  Siuiie  lii^jli  commissioii  by  which  Her  Majesty's  jnovt m- 
meiit  iiave  proposed  that  llic  onc^tions  ndatin;;'  to  the  l>ritish  (tosses- 
sions  in  Xorth  America  should  be  discussed,  provich'd  tliat  a'l  other 
claims,  both  of  IJr'lisli  sui>jects  and  citizens  of  tin;  I'liited  Suites, 
arisin;;  oul  of  acts  coiiiiiiitle(l  during  tl;  recent  civil  war  in  this  coiiii- 
tiy.  are  similarly  referred  to  the  same  lommission.  The  expressions 
made  us(>of  in  the  namt'of  the  rresident  in  your  alioveineiit  ioiicd  iiot(! 
with  rc^i'ard  to  the  ••Alabama  "  eiaiiiis  convince  nui  that  the  <io\('rii- 
iiient  ol  the  I'aited  S>ates  will  considei*  it  of  iiiiportaiice  that  these 
causes  of  dispute  between  the  two  con  nines  should  also,  and  at  the  same 
time,  "lie  done  away  wirli,  and  that  you  wil!  enable!  me  to  convey  to  my 
;;()veriiiihut  the  assent  of  the  Presiiieiit  to  tlu^  additi<»n  which  they  thus 
propose  to  the  <Iuties  of  the  hi^h  commission,  atid  which  <-annot  tail  to 
make  it  nioie  certain  that  its  labors  will  lead  to  the  remo\al  of  all  dif- 
ferences between  the  two  countries, 

I  ha\e  the  honor  to  be,  with  the  hi^^hest  (U)nsideration,  sir,  your  most 
iiliedient,  humble  servant. 

KDWAIM)  TIIOILNTOX. 

Hon.  Hamilton  1-"ism,  dc,  dv..  dc. 


,  1871. 
te  of  the 
for  the 


•I.  Mr.  Fi»lt  to  Sir  Edirard  I'liornton. 

Dkpautmknt  ok  SI'ATK, 

Wt(sltiiititini,  Fchrittiry  X  1 871. 

><Ul :  1  ha\('  the  honor  tu  ackiiow  le(|;;e  tin*  receipt  of  your  note  nt'  the 
i-l  instant,  in  which  yuii  iufnim  me  that  ,\('U  are  authorized  by  I'arl 
(iianville  to  state  that  it  would  ;,'ive  Her  Majesty's  lioveniiiieiit  ;;reat 
satisfaction  if  the  claims  commonly  known  by  the  nami>  of  the  '•Alabama 
claims"'  weie  submitted  to  ttie  consideration  (d'tlie  satne  liiyli  c(unmission 
liy  which  Her  Majest\'s  ;;()veriiiiieiit  have  proposed  that  the  <|uest ions 
lelatiiij,' to  tlu' r.riti.;Ii  possessions  in  North  America  should  be  discussed, 
j»rovided  that  all  other  claims,  both  of  I'.riti^h  subjects  and  <'itizeiisof 
llie  rniied  Stales,  arisiiijj  out  of  acts  committed  diiriii;,'  tlit^  recent 
civil  war  in  this  country,  are  similarly  referred  to  the  same(!oinmission. 

I  have  laid  your  note  befoni  the  President,  and  he  has  direet«'d  me  to 
express  (he  satisfaction  with  which  he  has  rec<'ived  the  intelliy«'i!ce  that 
l')arl  (iranville  has  authorized  you  to  state  that  Her  Majesty's  ^rovern- 
iiuMil.  has  accepted  the  views  of  this  (lovernment  ast«)  the  disimsilion  to 
be  made  of  the  so-ealled  •'Alabama  claims." 

He  also  directs  ine  to  say  with  referentjc;  to  the  remainder  of  your  not'  , 


'.  M 


2G8 


GHNEKAL    AI'l'KNDIX. 


■V         *W,ttl  ■ 


m 


t\ 


that  if  tlunv  l>e  otlu  r  and  iurtlier  claims  of  British  suhjocts,  or  of  Aiiu-r- 
ican  citizens,  ^Towinj;'  out  of  acts  coininittod  durinf;  tiic  recent  civil  war 
in  this  country,  he  assents  to  the  ju'opriety  of  their  reference  to  the  sanic 
hi^h  coinuji.ssion  ;  but  he  suj^jjests  that  the  hi;uh  conunissionors  shall 
consider  only  such  claims  of  tliis  description  as  may  be  i>reseuted  by  the 
jifovcrnnunts  of  [h(^  respective  claimants  at  an  early  day,  to  be  ajjreed 
upon  by  the  comniissionors. 

1  have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  obe- 
dient servant, 

HAMILTON   KISII. 

Sir  l.nwAiii.  Thornton,  K.  ('.  15., 

»lr.,  ((•('.,  dr. 


m 


1I-AIMM)1.NT\IKNT  OF   THi:    VMKlUt'AN    rO^IMISSlONKKS  AM) 

SK.KKTAUY. 


f. 


Iff 


11 


I  [  -A  I'POINTM  KNTS 


Dei'Autmknt  of  Statk, 

\\<inhiufft<ni,  Fchrmirif  L'O,  1871. 

Siu  :  Tlu*  l'r<>si«l('iit  liaviiifj,  by /iimI  with  tin*  iuhuM'  aiitl  consent  of 
tln'  Sciiale,  apiKiinh'd  \(»ii  to  he  a  <*otiiniissioiu'r  of  tin-  I'liitiMl  States  in 
a.joint  Itif^li  (romniissioa  between  the  United  States  and  (Jicat  IJiitain, 
1  lierewitii  inehise  yoni'  eoniniission.  Yon  will  be  {th-ased  to  inlorni  tliis 
Department  of  th<'  receipt  of  it,  and,  siioidd  it  l»e  accepted,  of  the  name 
of  thi^  State  or  county  in  which  \n\i  were  born.  I  also  inclose  a  bhmk 
form  of  th(^  oath  of  alU'^iianc**,  which,  in  the  e\ent  of  yunr  acceptance, 
you  will  please  execuie  and  »  -turn  te,  this  Department  f(»r  Die. 
I  am,  sir,  your  obedient  M-rvaiit, 

HAMILTON  riSU. 

Hon.  JiojiKiM'  i\  Sciiion(;k. 

The  same  to  the  lion.  E.  H.  IloAU,   lh»n.  Sami'EL  Nelson,  Hon. 
(Jkoiuje  U.  Williams. 


1.  Holifit  ('.  Sclnticli,  liiiviiiy;  Ix-cii  apimiiiti'd  a  (roinniisHionci' of  tlir  t'nitrd  Siiif»>«  in 
.'I  jiijiii  ln<;li  ('<)iniMiM>iiiii  IxUmth  thr  I'liiii'd  St:iti-H  and  (ii'rat  Mrituiii,  do  .suli'iniily 
KWi-ar  that  1  liavi^  nrvcr  volimtaiil.s  Iiuiih' aims  aliMill^t  tlii'  I'nilfil  Stales  Miiicc  I  liuvo 
Ix'rii  a  cii  i/i'ii  llifi  int;  tliat  I  liaM'  voliiiilaiilv  ;^ivi-ii  iin  aid,  iiiiiiiti'iiaiici-,  <-i)iiiisi>|,  or 
('ii('i>iira;;<  iih'hl  to  pi'isDiis  fii<;a;;i-d  in  arniol  liusiility  t  liiii'tn  ;  tliat  I  liavc  niMtiit'i' 
sonj^iit  imr  ac<'i'|>trd.  imr  atlciii|it('<i  to  cxi'iciMi^  tlif  luncti.>ii~  ol",  any  ollict-  wliatiivt-r 
under  any  antlioi'it,\  nr  pri'tcnded  anllmrity  in  iio.siility  to  liie  IInil<'d  Slatt-s;  tliat  I 
tni\''  not  virldrd  a  vidnntary  ■^iipiiort  to  any  |iri'trndrd  >;ovcrnMicnt,  aiitlioiity,  power, 
oi'conhtitntion,  m  itliin  tli<-  I  'mted  Slut  en.  linKtiie  or  inimical  i  l)ereii>.  Ami  i  do  turtlier 
NWear  (oralliiio)  tlntl,  to  tlic  Ik-nI  (d'  niv  kiiou  led<;e  and  ul)ilit.\,  1  will  support  and 
defend  till'  ( 'onsliiiii ion  of  tin-  I  jiited  Sialt-H  a;{.lill^<t  all  eiieinieH,  loreiM^n  and  dinneslie,  ; 
tliat  I  will  liear  line  t'litli  and  alle^iaiiee  to  (lie  Name;  that.  1  taki  tliis  4)ldi<;ation 
freely,  witliont  any  iiiental  leM-i-VMiion  or  pnrp'Mv'  ot  evasion  ;  and  tliiif  I  will  well  and 
(aitlitiilK  di.H('liaix<'  >'■<' dm  >>  s  ot  (lie  olHee  (,,i  w  ti.di  i  iiii  aliout  to  enter  :  so  help  mo 
(i.td. 

Sworn  to  uiul  Niib.HcrilKHl  htdoif  me  this  dav  <>f      . 


APPOINTMIINT  OK  SIXKKTAKY. 

KxE<;u'nvE  Mansion, 
Wasliiiitjtoti,  FeOtuarif  14,  1871. 

To  J.  C.  BANruni  T  Davis,  Ksq.. 

AnHi,staitt  )>i<rr(Uity  «>/'  Stale  : 
Yon  are  hereby  desi;;nale«l  atid  tliii'cted  to  perform  the  <liities  of  sec- 
retaiy  oi'  tiie  itoiiimissioners  on  lieiialtol   the  ('nited  States  in  the  joint 
hi^h   conimisi^ion,  to  meet  in  U  astiiii^ton  lor  the.  consideration  ol  the 
•jnestious  i»cMidin{^  between  the  United  Stalcfi  and  Great  Ibitain. 

U.  S.  tiKANT. 


272 


GENKRAL    APPENDIX 


ACCEPTAXCKS  OF  APPOINTMENTS. 


•  Washington,  February  25,  1871. 

Sir  :  I  have  recoived  the  commission  as  coiuinissioiier  of  the  joint 
high  commission  between  the  United  States  and  Great  Britain,  and 
hereby  accept  the  same.     I  was  born  in  the  county  of  Washington, 
State  of  New  York. 
I  liei^with  inclose  the  oath  of  office  for  your  Department. 
I  am,  sir,  your  oljedient  servant, 

SAMUEL  NELSON. 
Hon.  Hamilton  Fish, 

Secretary  of  IState. 


Washington,  February  25,  1871. 

Sir  :  Having  signified  my  acceptance  of  tlie  appointment  to  tlie  duties 
of  commissioner  in  tlie  joint  liigh  i'.ommission  i)etween  the  United 
States  and  CJreat  Britain,  which  tlie  I 'resident  lias  been  i)leasc<l  to 
confer  on  me,  I  herewith  inclose  tin*  oathof  ollice  and  allegianc<',  which 
I  have  taken  in  the  form  recpiired  by  law. 

I  liave  also  to  inform  you  that  I  was  born  in  the  State  of  Ohio. 

I  liave  the  honor  to  be,  verv  respectfullv,  vour  ()be<lie!it  servant, 

JiOliEirr  C.SCHENCK. 
Hon.  Hamilton  Fish, 

Secretary  of  State. 


Washington,  March  1,  1871. 
Sir  :  r  have  the  honor  to  acknowledge  the:  receipt  frotn  the  Depart 
meut  of  State  (»f  ii  commission  from  the  President,  apjiointing  me  "to 
be  a  commissioner  of  the  I'liited  States  in  u  Joint  high  (U)mmissi(m 
between  the  Inited  States  and  (Jreat  Ibitain,"  and  to  inform  you  that 
1  accept  the  same.  I  haxf  taken  and  subs(*ribed  the  re<piisite  oath, 
whi<^h  has  Iteeii  duly  certiiii-d,  and  is  inclosed  herewith.  1  was  born  in 
Concord,  in  the  eommonwealth  of  Massa<;husetts. 

I  am.  sii',  veiv  reoeetlidlv.  \<)Mr  obedient  servant, 

ElilONEZIOim.  HO  A  If. 
lion.  Hamilton  Fish. 

Secretary  oj  state. 


li 
i 


Mi 


Washington,  March  1,  1H71. 
Sir  :  I  have  tlu  honor  tn  ueknowlciig*  the  reeeipt  tioni  you  of  a  com- 
mission i'rom  the  l*resi<lenl  iis  one  of  tlie  commissioners  in  ajoinr  high 
commission   between  the  I  nif«'il  States  and  (Jreat  Britain,  and  accept 
the  appointment.     I  am  a  native  of  the  State  of  New  York. 
Y»»urs,  \erv  truiv. 

(11:0.  H.  WILLIAMS. 

Hon.  Hamilton  I-'ish, 

Secretfcry  of  State,  ]Va.iliiuytou,  1),  (J, 


Ill -INSTKKTIONS  TO  THi-:  AMKItK  AN  COMMISSION!: KS. 


18  u 


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iii.-i.\sTia;aii?Ns  to  thk  amkkican  commissiunkiis. 


Mr.  Fish  to  (ifuiml  Sdunvk. 


Dkpaimmknt  of  Statk, 

WiLshiiHiloii,  Frill  nil  I/I  \l'Jj  |S7I. 

Siu:  Yom-  Iii^li  cliiniii'tiT  iind  cxiHTiciico  in  piiUlic  Mlljiii's,  ;iii<l  tin- 
t';iiiiiliaiit,v  wliicli  vniir  Un\ix  servicer  iiihIci-  tlif  l-'cilcinl  (Jovcrninciit 
li;i.s  ;ni\  I'll  you  of  till'  (iiicsf  ions  to  1)('  (lisciisscd  and  t  riMicd  l»y  IIh-  Joint 
coniniission,  of  wliicl!  von  IniVf  Itcini  appointed  n  nn'mln-i',  sfcin  to 
I'cinlcr  nnnccossaiy  any  instrnctions  upon  tin-  (pu'slions  that  will  coinc 
uinlcr  the  considciation  of  that  lM»dy. 

Aiu)th('r  consideration,  nnne  pci'sonal  to  llic  nrnh'isijincd,  t'orliids  nn 
attempt  on  his  pait  to  <;ive  instructions  to  his  associates  on  tlie  com 
mission. 

Von   will    receive  herewitli  a  confidential    nieanu'andnm  or  lniel,  em 
Itodyiii;;' a  rclercnce  to  corr('S|iond('nce  III"  this  Department,  and  to  the 
history  ofseveia!  of  the  questions  which  may  l»e  discussed  l>y  the  cnm 
mission,  vi/, : 

I.  Tlu'  fisheries. 

II.  The  iia\iL;alion  of  the  Saint  liawreiice. 

III.  Iicciprocal  trade  hevueeii  the  I'nited  Slates  ami  the  Doaiiiiiuu  ol 
('anada. 

I\'.   X(U'thw('sr  water  Itonndary  and  the  ishind  ot  S;iu  .liian. 

\'.  The  claims  of  the  (Jniteil  Stales  a;;ainst  <lrcal  roilain  on  acionni 
of  acts  (MMuinil  ted  i»y  rehel  cruisers. 

\'l.  Claims  of  llritish  siihjecls  against  the  I'nited  States  for  losses 
and  injuries  a'isin;^-  cmt  of  acts  committed  during  tin'  recent  civil  war 
ill  th<'  I'nited  States. 

It  is  hoped  that  this  im>inoi:indum.  which  has  heeti  |uepaied  in  this 
hepaitmeiil,  may  aid  you  ity  its  references  in  the  coiisnleration  of  the 
several  «|iiestions  on  which  it  treats. 

The  President  commits  the  discussion  and  treatment  of  llie  several 
ipiestions  l(»  thejoint  discretiim  of  yourself  and  ,\our  associates. 

The  siltin.ys  (»!'  the  tMunmission  liein;.;'  in  this  city,  yu'i  v  ill  ha\e  t  he 
iippoilunity,  of  which  he  expects  you  to  a\ail  yourself,  ol'  consultiiifi 
with  him  from  time  to  time,  and  u|ion  any  points  in  which  you  may 
have  serious  (loul)ts,  and  you  can  also  cautiously  and  conlideii!  ially 
ascertain  the  views  and  opiii'ons  of  SenatfU's,  to  whiun,  in  case  your 
iiej.;dtiations  shall  result  in  a  treaty  or  c<Hi\-eiitioii.  that  result  must  he 
siiluuittcd  for  their  constit uliimal  advice  and  consent. 

One  point  not  referred  to  in  the  accompaiiyin;;'  im  luoranduni  will 
prohalily  i>e  luiMijiht  to  the  consideration  of  the  -loint  ( 'ommissinn.  viz  : 
SouH'  agreement  l)et  ween  the  two  ( I  oxen  im  cuts  dellniii;^'  their  respective 
li.U'hls  and  duties  as  neutrals  in  «'ase  the  oth  -r  (iovernment  he  en;^a^('d 
ill  war  with  a  third  power. 

It  is  enou;nh  that  the  suhje(tt  he  indica.ed  an<'  your  attenticui  to  it 
asked  as  oiw.  of  the  important  (lucstions  that  may  'iij^a.ne  the  considera- 
tiuuM  of  tliu  cuintiiissioii. 


27r, 


(JKNKKAL    AI'I'KNDIX. 


Tlu'  rr«'sit]«'iit  liopj's  tliiit  wliiih'xcr  principles  iiiii.v  Im-  csliililiNlicd  m 
rcct>;>iii/.c(l  in  (foiiiicctioii  Willi  this  snhii-rt  Mliall  lie  ('(insidiMcd  cipially 
itppliriiMc  to  tile  pfiiti*!  ciAt'inl  Itv  tlif  lute  civil  Wiir  in  iIun  counii  \ 
iind  tlic  I'utnrc. 

I  have  the  lionor  to  he,  sir,  void- oheilient  serviiiit, 

llA.Mll/rON   KISII. 

lion.  KoMK.IM   ('.  S<  IIKNCK. 

(The  same  to  each  ineinlter  of  the  commission.) 


•■1 


iHcloniin, 


Conlidential  iiiemoiaiMlnni  lor  the  use  of  the  < 'ummissioiieis  on  the 
part  of  the  rniled  Stales  in  the  American  iiiitisit  .luint  IIi;;h  ('onimis 
sion,  \\'ashiii;^ton,  1S7I  : 

I,  ConcspondeiH'e  between  Mr.  I-'ish  ami  Sir  l'](lwar<l  Thornton  pn 
Uiniiiid'ji  to  tin?  lie^olialioli.     (For  this  corresponileiice  see  (Oi/r, 
|iaye  L'ti.'J  ct  srif,) 
11.  The  lislieries,  jutsf,  pa^i'e  L'TT. 
III.  Navigation  of  the  Saint  Lawicnce,  jiost,  paj^e  '_'>*!). 
1\'.   K*ecipr(H!al  trad*'  Iietween  the  Tnilfd  Stales  and  tiie   Dominion  <if 
Canada,  jtosl,  pa.!;e  L'I»L'. 
\  .   Northwest   water  honndar.v    and    the    island    ol    San    .liian,  /io.v/. 

pa^e  ."><»;. 
\  I.  The  (  laims  oi'  the  I'niteil  Stales  a;;ainsl  (I real  llrilain  on  accouiil 
of  acts  committed  liy  rebel  cinisers,  /;(*,s7,  paj^c  'M'.K 
\'ll.  <"laimsof  iJritish  snitjects  a;;ain-<t  the  I 'iiited  Stales  for  losses  and 
injni  ies  arisiii;^  ((111  of  acts  ctaiimilled  dnriny  the  recent   civil 
war  in  the  I'nited  States,  /><>«/,  i)ay:«^ .'{(»-. 


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Tlie  American  flBliermen  hiive  tlie  rifibt  t0  take  (Ish  of  every  kind  on  the  coMts  colored  that  . 

They  liavc  nlso  llie  riglit  bi  dry  and  ciir'.*  ftili  in  (lie  unsettled  bays,  Imrbora,  and  creeks  of  the  cooat  colored  thus 

(t  Is  claimed  tliat  the  French  flsbermun  have  also  the  right  to  take  fish  on  the  coast  colored  thua 


The  United  Slatpshav 
Dominions  in  America  no 
of  shelter  and  repairing  d 
be  necessary  to  prevent  tl 


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_.  .1  The  United  StntPS  hare  reimnnml  the  lllicrty  to  inke.  flrj',  or  niro  flsh  within  Ihrop  marine  milfR  of  the  crafts,  Imvs,  orockf,  or  hnrliors  of  the  nrillsli 
■I  Dominiimg  in  Americn  not  inoliiiK'tl  in  the  above  liniils ;  Itnt  the  privilege  is  reseri-etl  to  AmcrioHn  flHltrmen  tn  rntei-  snrli  Iihvr  nr  InirlmrK  for  the  purpoae 
S^  of  slielter  and  repairing  damiviTL's  there,  of  piircliHsIng  wood,  ami  of  olttalnInK  water,  and  for  no  other  pnrpoao  wlirttever,  uiKlcr  sneli  resirirtlons  iis  may 
I  be  necessary  to  prevent  them  fnim  loklng,  drying,  or  curing  flsh  therein,  oriu  any  other  inunner  whatever  abusing  the  privileges  reserved  to  them. 


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CONFIDENTIAL  MEMnRAXnUM  FOR  THE  USE  OF  THE  COMMISSIONERS  0\  THE 
PART  OF  THE  UNITED  STATES  IN  THE  AMERtCAX-RRITISH  JOINT  HIGH 
COMMISSION,  WASHINIiTON,  11171. 


[l.-THE  FISHERII'X 


1.  RIGHTS  AS  DEFINED  BY  TREATY. 

Tlio  (!Oiivent:ioii  of  1818,  luu-einafter  reterrod  to,  -^ives  to  Aiuoricaii 
tislieiiiien — 

1.  Tlic,  riylit,  ill  cojiimon  with  British  lishcrmiMi,  to  _//.s7(  witliin  thicc 
miu'iiic  iiiiU's  of  tlie  Isiiul  on  all  the  coasts  markod  red,  blue,  and  yell-ow, 
resi)eetively,  on  the  annexed  nia]). 

L*.  Prior  to  the  negotiation  of  the  treaty  of  1818,  France  had  s«>cnred 
for  her  lishernien,  by  treaty  with  Great  JJritain,  a  similar  ri}>ht  on  all 
the  coasts  marked  led.  Hence  it  follows  that  the  Americran  lishermen, 
as  to  that  portion  of  the  coast,  enjoy  the  rijjfht  to  fisk  in  coirnnon  with 
the  French  as  well  as  the  British  tishermen. 

3.  The  a<hlitional  ri<>ht  as  to  the  coast  marked  blue  to  land,  and  dry, 
and  care  fish,  so  lonj>'  as  the  (;oast  is  unsettled. 

I  As  to  this  rijjiht,  it  is  to  be  observed  that  it  is  said  to  be  important  as  to 
the  (;()d-lisheries,  but  unimportant  as  to  the  mackerel-fisheries.  The  cod 
are  usually  si)lit  and  dried  on  sluu-e;  the  mackerel  are  cured  on  board.] 

1.  The  "privile.<>e"  is  also  reserved  to  the  x\.nu>ricau  fishernu'ii  to  en- 
ter the  British  North  American  bays  or  harbors,  iu)t  iiujluded  within 
the  limits  of  coast  so  marked  in  colors,  "for  the  i)nrp()se  of  shelter  and 
of  repairinj;-  damages  therein,  of  i)urchasin<j  wood,  and  of  obtaining 
water,  and  for  no  other  purpose  whati^ver.'' 

[The  United  States  claim  that  this  is  a  jtriftlcf/e  to  their  lishing-ves- 
sels  to  go  in  and  out  of  those  bays  and  harbors  for  the  pnrposes  named 
without  the  custom-honse  formalities,  and  is  not  to  be  confounde«l  with 
the  rifjht  which  all  vessels  which  bear  the  tlagof  tlus  United  States  have 
to  enter  the  open  British  ports  for  the  purijosc^  of  trade,  or  any  other 
purpose  lawful  under  the  customs  of  nations.  | 

o.  Except  as  above  defined,  the  United  States  renounce  fonner  the 
liberty  to  tike,  dry,  or  cure  fish  within  thr<>e  marine  miles  of  any  of  the 
coasts,  bays,  creeks,  or  harbors  of  the  British  doniinions  in  America. 

•2.  CHAUAC'TER  OF  THE  FISHERIES. 

The  fisheries  are  known  as  the  deep-sea  and  the  in-fihore  fisheries. 

The  latter  are  princii)ally  for  herring  and  mackerel ;  atul  are  under- 
stood to  have  been  the  princi|)al  cause  of  the  trouble.  The  former  in- 
clude, aud  iu  fact  maiuly  consist  of,  the  cod  and  halibut  fisheries. 

3.  VALUE  OF  THE  BRITISH  COLONIAL  MARINE  FISHERIES. 

The  value  of  these  fisheries,  as  given  in  the  latest  accessible  returns,  is — 

Quebec '. $1, 010, 240  46 

New  Brunswick 038,  570  00 

Nova  Scotia 2, 501,  507  00 

Newfoundland 7, 005, 807  40 

Prince  Edward  Island 109,  580  00 

Magdalen  Islands 71, 356  00 

Total 11,433,067  00 


'>i-''?i 
.''.'*1 


55.3 


278 


GENERAL   APPENDIX. 


vl 


H 


Tlio  tislioiiosof  NewtbmKlliind  arc  prii  cipally  docp-soa  lishoiioy,  I'lic 
consul  at  iralifax  giv  "s  it  as  lii  ■.  opinion  tliat  "of  tiic  agjircgato  prod- 
ucts of  tlic  whole  colonial  lislicries,  the  inshore  iishcrics — wliicli  arc 
l>ursiic(l  chietlj'  for  TnacUcrcl  and  hcrriny — constitute  the  sn)aller  jtor 
tion  ;  i)robably  not  more  than  one-fourth  of  the  whole." 

4.   VALUE   OF   THE   AMEllICAN   FISIIEUIES. 

Mw  Mortinu'r  ,Iackson,  the  consul  at  Halifax,  says:  "The  number  of 
Anieii(!an  hshinj;- vessels  en,i;aj;ed  in  tiie  <  eei)-sea  (isheries  oil"  the  coasts 
of  the  IJritish  North  American  provinces  is,  as  near  as  can  be  estimated, 
about  1,400,  with  an  agj,'regate  tonna<;('  of  nearly  10(),000  tons,  employ- 
inji'  about  17,000  men.  They  i)ursue  the  fisheries  on  the  banks  of  S'ew- 
foundland,  in  the  (luHof  Saint  Lawrence,  and  on  the  wester:;  banks.  On 
thebaidvs  the  lisheries  are  pursued  fori'od  aiul  halil)ut,  and  in  tlu'  (rulf  of 
Saint  Lawi'en(!e  principally  for  mackerel.  The  capital  employed  in  these 
lisheries  is  estimated  at  between  eight  and  nine  millions.  The  aggregate 
annual  yield  is  about  seven  millions  of  dollars.  Tlie  deep-sea  tislieries 
are  exclusive  of  the  inshore  lisheries,  which  were  alone  affected  by  the 
abrogation  of  the  reciprocity  treaty.  During  the  existence  of  that 
treaty,  and  subsetpiently,  to  a  limited  extent,  under  tiie  li(!ense  system, 
the  inshore  fisheries  were  pursued  by  our  fishermen  chielly  for  mackerel. 
T/ic  ([Huutlty  HO  tdJcen,  hoicci'cr,  did  not  exceed,  on  an  average,  in  auij  one 
year,  more  than  one-fourth  of  the  whole  eateh  of  that  deneription  (f  Jish.'" 
{M<(nafieript  dl.spdteh  No.  .'597,  January  23, 1871. 

i^Ir.  E.  n.  Derby,  of  Uoston,  says :  "  The  fisheries  of  the  State  of 
Massachusetts  for  whale,  cod,  mackerel,  and  herring  produce  yearly 
about  twelve  millions  of  <lollars,  of  whicii  less  than  a  sixth  are  usually 
drawn  from  our  fisheries  in  the  Gulf  of  Saint  Lawrence."  (Manuscript 
Review  of  the  Ottawa  Review  of  the  Presidenfs  Mes.sage.) 

f).  JLVKKETS  FOR  CANADLVN  FISH. 


-f  * 


I' 


The  Newfoundland-cured  codfish  find  a  large  market  in  Spain,  Portu- 
gal, the  Mediterranean,  South  America,  and  the  West  Indies. 

With  that  exception,  the  United  States  furnish  the  best  market.  This 
market,  especially  as  to  nuickerel,  has  not  been  injured  by  the  abroga- 
tion of  the  reciprocity  treaty. 

"  It  was  fully  demonstrated,  during  the  existence  of  the  reciprocity 
treaty,  that  the  .admission  of  American  fishing-vessels  to  a  common 
participation  in  the  privileges  accorded  to  British  vessels,  instead  of 
being  injurious,  was,  on  the  whole,  beneficial  to  the  interests  of  the 
provincial  fishermen."  (Manuscript  report  of  the  consul  at  Halifax,  Jan- 
Mary  23,  1871.) 

6.  DIPLOMATIC  HISTORY. 

The  iu-shore  fisheries  were  aciiuired  to  Great  Britain  by  the  treaty 
of  Paris,  (1703,)  which  terminated  the  French  dominion  on  this  conti- 
nent, and  were  enjoyed  from  that  time  till  the  lievolution  by  the  inhab- 
itants of  the  original  thirteen  States  in  common  with  the  other  inhabi- 
tants of  the  British  empire. 
In  the  negotiations  preceding  the  treaty  of '83,  an  attempt  was  made 
to  induce  the  American  commissions  to  give  up  the  fisheries, 
which  John  Adams  met  by  saying,  "I  will  never  put  my  hand 
to  any  article  without  satisfaction  about  tUo  fisheries."    Finding  the 


GENERAL    APPENDIX. 


279 


1H13-    11. 


coinmissioiiors  firm  on  this  question,  the  pro^'isional  articles  were  signed 
November  ,'{0,  1 7<SU,  and 

"The  (U'liiiitiNc  treaty  of  peace"  was  signed,  of  whieli   the  M  article 
(being  identical  with  Article  HI  of  the  [jrovisional  article)  read  i;,xs,pt.  ^ 
thns: 

AUTICLK  III. 

It  is  iijii't'cil  tlijit  tlio  poDplc  of  tlio  ITiiitcd  Stafi's  sliiill  coiitiinK'  to  I'li.joy  iiiiinolcstcil 
I  lie  ii;>lif  to  take  lisli  of  every  kind  on  tin;  Gnind  Bank,  and  on  all  the  other  liaiiks  of 
Newfoundland  ;  also  in  the  Gulf  of  Saint  Lawreiiei^,  ami  at  all  other  places  in  the  sea 
where  tin'  iiilialdlants  of  l)ot]i  countries  usvA  at  any  time  heretofore  to  lish  ;  and  also 
that  the  inhaliitants  of  tho  United  States  shall  liave  lil)erty  to  take  (ish  of  every  kind 
on  such  part  of  the  coast  of  Newfoundland  as  British  lisliermen  shall  use.  (hut  not  to 
dry  or  cure  the  same  on  that  island  ;)  and  also  on  tlu^  coasts,  hays,  and  creeks  of  all 
otlier  of  IMs  Biilannic  Majesty's  (h)ininions  in  America;  and  that  the  Anieriran  lislier- 
men shall  lia\('  lilierty  to  ilry  and  cure  lish  in  any  of  tin;  unsettled  hays,  harhors,  and 
creeks  of  Nova  Scoria,  Maj^dahiii  Islands,  and  I>al)rador,  so  lourr  as  the  same  .shall  re- 
main unsettled  ;  but  so  soon  as  tin;  same,  or  either  of  tluMii,  shall  lie  settled,  it  shall  not 
1)0  lawful  Uti  the  said  lisliermen  to  dry  or  cure  lish  at  ^uch  settleuieut,  witliout  a  previous 
a,^rcem»'nt  for  that  purpose  with  the  inlmbitauts,  j)roprietors,  or  possessors  of  the 
jfround. 

The  fisheries  were  among  the  questions  discussed  by  the  comuiis- 
.sioners  for  negotiating  the  treaty  of  peace  that  closed  the  war  of 
1812.  The  r^nited  States  commissioners  claimed  that  the  treaty 
of  178;j  conferred  no  new  rights  upon  the  United  States;  that  it  was  an 
agreement  as  to  a  division  of  property  which  took  place  on  the  division 
ot  the  British  em[)ire  after  the  success  of  the  American  llevolution,  and 
was  not  ill  that  resi)ect  abrogated  by  war.  The  Briti.sh  commissioners, 
on  the  other  hand,  held  that,  while  the  treaty  of  1783  recognized  the 
right  ot  the  United  States  to  the  deep-sea  fisheries,  it  conferred  privileges 
as  to  the  inshore  fisheries  and  the  use  of  the  shores  whicii  were  lost  by 
a  declaration  of  war.  The  parties  being  unable  to  agree,  {see  Am.  St. 
Pap.,  For.  ReL,  vol.  3,  pages  732  et  seq.) 

The  treaty  of  Ghent  was  concluded  without  allusion  to  the 
fisheries. 

Lord  Bathurst  instructed  the  governor  of  Newfoundland  that  "  on 
the  declaration  of  war  by  the  American  Government,  and  the  hi...  .lum,  i- 
consequent  abrogation  of  the  then  existing  treaties,  the  United  States 
tbrfeited,  with  respect  to  the  fisheries,  those  privileges  which  are  purely 
conventional;  ami,  as  tiiey  have  uot  been  renewed  by  stipulation  in 
the  present  treaty,  the  subjects  of  the  United  States  can  have  no  pre- 
tense to  any  right  to  fish  within  the  British  jurisdiction,  or  to  u.se  the 
British  territory  for  purposes  connected  with  the  fisheries."  [Revieic 
of  Presi(leHt\>i  Alessagc,  Ottmca,  December,  1870.) 

This  position  resulted  in  a  long  correspondence  between  Mr.  John 
(iuiney  Adams  and  Lord  Bathurst,  which  ended  by  the  British  mv  lu 
government  adhering  to  its  position.  The  corre.spondence  may  be 
found  in  Foreign  Relations,  vol.  4,  page  352  et  seq. 

Mr.  Bagot,  British  minister  at  Washington,  reasserting  Lord  Bath- 
urst's  construction  of  the  treaty  of  1783,  and  of  the  eft'ect  of  ihh;,  sov.  27. 
the  war,  proposed  a  new  arrangement,  upon  the  basis  of  a  concession 
of  the  right  to  cu''e  fish  on  certain  coasts,  to  fish  within  British  limits 
oil  certain  coasts,  and  of  a  renunciation  of  the  right  to  fish  within  those 
limits  on  all  other  coasts.  The  first  proposition  made  was  not  an 
acceptable  one. 

Another  proposition  was  made,  which,  although  not  accepted,  ap- 
pears to  have  been  the  basis  of  the  subsequent  arrangement.  ner.  31 
[lb.,  page  305  et  seq.) 

Instructions  having  been  issued  by  Great  Britain  to  seize  foreign 
vessels  fishing  or  at  anchor  in  any  of  the  harbors  or  creeks    1817,  Aug. ». 


1814,  Pec.  M. 


)  'Pi: 


280 


GENERAL   APPENLIX. 


in  her  ^Majesty's  British  North  American  possessions,  or  within  their 
ujaritinie  Jnrisdiction,  and  send  them  to  Halifax  lor  adjudieation,  sev- 
eral vessels  wore  seized,  and  information  officially  commnnicated  to 
this  Government,     {lb.,  piuje  37*.).) 

Mr.  Galhitin,  envoy  extraordinary  and  minister  plenipotentiary  to 
HiH  Maviia.  France,  and  Afr.  Knsh,  envoy  extraordinary  and  minister  plen 
i])otentiary  to  Great  Britain,  were  then  empowered  "  to  aj^ree,  treat, 
consult,  and  nej^otiate,  of  and  concerning  the  j^eneral  connnerce  be- 
tween the  United  States  and  Great  Britain  and  its  d<tminions  or  depend- 
encies, and  such  other  matters  and  subjects  interestiii,u'  to  th»'  two  na 
tions  as  may  be  given  to  tliem  in  charge,  untl  to  conclude  and  sign  a 
treaty  or  treaties,  convention  or  conventions,  touching  the  i)remises.'* 
(lb.,  page  372.) 

Their  instructions  related  to  the  prolongation  of  the  treaty  of  com- 
mence of  LSI"),  (8  Stat,  at  Large,  --*8;)  to  the  comment',  and  intercourse 
with  the  British  colonies  in  tlie  West  Indies  and  North  America  ;  to  in- 
demnity to  the  owners  of  slaves  carried  away  after  the  ratitication  of 
the  treaty  of  Ghent;  to  the  boundary -line  between  the  United  States 
and  the  British  possessions;  and  to  the  lisheries,     {lb.,  pages  .'^71-2.) 

They  arranged  for  all  these  points,  except  the  commerce  with  the  col- 
onies, in  which  the  British  ministry  of  that  day  were  r.ot  disposed  to 
allow  the  United  States  to  share,     {lb.,  page  .'380.) 

At  the  third  conference  of  the  commmissioners  the  American  plen- 
sepiember  17.  ipotcutiaries  submitted  their  projxtsed  articles,  among  which 
was  the  following  relating  to  the  fisheries: 


.    J  J 


'•r 


AUTICLK   A*. 

Whereas  diflfcrcnccs  h.avo  arisen  i'(!Spectiii<;  tlic  liberty  claimed  liy  the  United  Stato 
for  the  inhabitants  thereof  to  take,  dry,  and  (Mire  tisli  on  certain  coasts,  buys,  harbors, 
and  creeks  of  His  liritanuic  Majesty's  dominions  in  America,  it  is  a^iri'cd  i»et\veen  the 
bij^h  eontractln<4-  parties  that  tin;  inhabitants  of  the  said  irnited  States  nhaH  nnitiuiic  In 
enjoy,  H>iim'!eMyd,foren'r,  the  liberty  to  take  fish  f)f  every  kind  on  that  part  of  the  .south- 
ern coast  of  Newfonndland  wliich  extends  from  Cape  Kay  to  the  lianntaii  Islands,  and 
the  western  and  northern  coast  of  Newfonndlaml  from  tin;  said  Cape  Kay  toQnirpcm 
Island,  on  the  Ma<j;dalen  Islands,  and  also  on  the  coasts,  bays,  harbors,  and  creeks  from 
Mount  .Joli,  on  t\\v.  southern  coast  of  Labrador,  to  and  llironj^h  tlie  Straits  ui'  "'^lleisle. 
and  thence  northwardly  indednitely  alonj;  the  coast ;  and  that  the  American  fisiiermen 
shall  also  have  liberty,  forever,  to  dry  and  cure  lish  in  any  of  the  unsettled  bays, 
harbors,  and  creeks  of  the  southern  part  of  the  coast  of  Newfoundland,  here  above 
described,  of  the  Magdalen  Islands,  and  of  Labrador,  as  here  ahoir  described  ;  but  so  soon 
as  the  same,  or  either  of  them,  shall  be  settled,  it  shall  not  be  lawful  for  the  said  fisher- 
men to  dry  or  cure  lish  at  such  settlement  without  previous  a<;reenu!nt  for  tlutl  purpose 
with  the  inliabitants,  proprietors,  or  possessors  of  the  <;round  ;  and  the  I'nited  States 
hereby  renounce  any  liberty  heretofore  enjoyed  or  claimed  by  tin;  inhabitants  thereof 
to  take,  dry,  or  cure  lish  on  or  within  three  ni.arine  miles  of  any  of  the  coasts,  bays, 
creekf^,  and  h.arbora  of  His  Brit.anuic  Majesty's  dominions  in  America  not  included 
within  the  above-mentioned  limits :  Provided,  hoieever,  That  the  American  tishermeii 
shall  be  adnntted  to  enter  such  bays  and  h.arbora  for  the  purpose  only  of  ohtatniny  shel- 
ter, wood,  water,  and  bait,  hut  under  such  restrictions  as  may  l>e  neeesmry  to  prevent  their  dry- 
ing or  curing  lish  therein,  or  in  any  other  manner  abusing  tlm  jmvilegc  hereby  reserved 
to  them. 

At  the  fifth  conference  the  British  plenipotentiaries  presented  a 
counter  project,  of  which  the  part  relating  to^the  fisheries  was 
in  the  following  language : 


m».  oci.  6. 


Article  A. 

It  is  Jigreed  that  the  inhabitants  of  the  United  States  shall  h.ave  liberty  to  take  tish 
of  every  kind  on  that  part  of  the  western  coast  of  Newfoundland  which  extends  from 

*  The  words  iu  italics  were  erased  as  the  article  was  finally  agreed  to,  and,  in  most 
cases,  other  words  substituted  in  their  places.    (See  post.) 


i^t 


GENERAL    APPENDIX'. 


281 


treat. 


Capo  l?iiy  to  till'  (^iiirpoii  IslaiulH,  aiid  on  tlutf  ])ait  of  tlif  soiitlicrn  and  fastiTii  coast 
of  Laliiailof  wliicli  rxti'iiilM  from  .Mount  .loli  to  lliinlin!;(lon  ts|;iiiils,  And  it  !•<  fnitlicr 
afircfd  that  the  lishcinn'n  of  tlw  I'nitcd  Stati's  shall  have  lilirriy  to   dry  .ind  cnic  lisli 


af^rctMi  iinir  nic  nsncinnMi  oi  rnc  i  nitcci  rsiaics  snaii  nave  luirriy  lu  (uy  and  ciiic  nsii 
in  any  of  the  nnsctlh-d  hays,  haihors,  ami  crt'tdis  of  ihr  said  sontli  ami  casl  coast  ol 
Labrador,  so  louj;-  as  the  same  shall  remain  niiscltlcd  ;  hnt  as  soon  a-^  the  same,  or  any 
part  of  thcni.  shall  he  settled,  it  shall  not  he  lawfnl  for  the  saiil  lishermen  to  tlry  or 
euro  tish  without  a  previons  aj;rceii\ent  for  that  pni'pose  with  the  inhaliitants.  proprie- 


l)rivile;;e  of  carryiiiii  on  tvade  with  any  of  Ilis  Miitannic  Majesty's  sithji-cts  residinjy 
within  the  limits  hercinhcfore  assii;ned  to  the  use  of  the  lislicrmi  n  of  the  Ignited  States 
for  any  of  the  pnrjioscs  aforesaid. 

Aiwl  in  order  the  inort^  effcctnall.v  to  j^uard  aijainst  sniii,ir;ilin}i,  it  shall  i\ot  1>e  lawfnl 
for  tli(5  vessels  of  till-  United  States  en<ja^ed  in  the  said  lislu'i'y  to  have  on  hoard  an.v 
goods,  wares,  or  merchandise  whatever,  (ixeejit  sn(di  as  nni.y  lie  necessary  foi'  the  prose- 
cution <if  the  lishei'y  or  the  snjiport  of'  the  fishermen  while  engaj;ed  liiereiii.or  in  the 
]»rosecntion  of  their  voyages  to  and  from  the  said  fisliing-grotinds.  And  any  \e>isel  ot 
the  I'nited  Mates  wliicl;  shall  contravene  this  regulation  may  lie  seized,  condemned, 
and  conliscated,  together  with  her  cargo. 


The  Amciican  ?^lenii)otciitiaries  rcpli«'(l  to  this  as  fonows; 


Hw.  o.-i.  r 


FISHERIES. 


Tlic  Amci'ican  ]denipot(!ntiarics  an^  not  autliori/.ed  by  tlieir  instrnetions  to  .assent  to 
any  article  on  that  suhject  which  shall  not  secure  to  the  inhabitants  of  the  I'nited 
States  the  liberty  of  taking  lisIi  of  e\'erv  kind  on  the  southern  coast  of  Newfoundland 
from  Cape  Ray  to  the  J'anu^a  Islands,  and  on  the  coasts,  bays,  harhois,  and  creiks  t'roni 
Mount  .loIi  on  the  southern  ('Odst  of  Labrador  to  and  through  the  Straits  of  Helleisle, 
and  thence  northwariUy  imh'tinitely  along  the  coast,  and  also  the  libeity  of  drying  and 
curing  lish  in  any  of  the  unsettled  bays,  harbors,  and  creeks  of  Labrador,  and  of  the 
southein  coast  of  Newfoundland,  as  above  desiuibed,  with  the  proviso  respect  iiig  such 
of  the  said  bays,  harliors,  and  creeks  as  may  be  settled. 

The  lilieity  of  taking  lish  within  rivers  is  not  asked.  A  positive  clause  to  except 
thoni  is  unnecessary,  unless  it  be  intended  to  compndiend  nmh'r  that  name  waters 
which  might  otherwises  be  considered  as  bii.\s  or  creeks.  Whatever  extent  oi  lishiug- 
ground  may  be  set-urcd  to  xVnu'rican  lishermen,  the  American  plenipotcmtiarii'.-  ait;  not 
prepared  to  accejit  it  on  a  teimre  or  on  conditions  dilferent  from  those,  on  whii  h  tlie 
whole  has  heretofore  been  held.  Their  instrnetions  did  not  anticipatt;  that  any  new 
terms  or  restrictions  would  bo  ainiexed,  as  none  wore  suggested  in  the  proposals  made 
by  Mr.  IJagot  to  the  American  Government.  The  clauses  forbidding  the  spreading  of 
nets,  and  making  vessids  liable  to  conlisL'ation  in  case  any  articles  nor  wanted  fir  car- 
rving  on  tins  llsher.v  should  lie  fouiul  on  boar. I,  are  of  that  description,  and  would  expose 
the  tislierinen  to  endless  vexations. 

At  the  sixth  conference  the  American  plenipotentiaries  dechired  that 
they  could  not  afjree  to  tlie  article  on  the  fisheries  broiij-ht  for- 
ward by  the  British  plenipotentiaries  at  the  preceding  confer- 
ence,    {lb.,  page  302.) 

The  British  plenii)otentiarie.s  presented  the  following  article  as  to  the 
fisheries :  oct.  is. 


liH,  Oct.  (I. 


m 


282 


GENERAL    Ari'EXDIX. 


'        !|1 


AuTici.i:  A.* 

Wlii'icus  (linci'incrs  Imvc  iirisi'ii  rcsjiccliiiL;  llic  lihcily  clMiuiril  liy  tlir  I'liitiMl  States 
lur  111!'  iiiiiiiliii.'iiits  llirrcid'tii  liikc,  dry,  niiil  ciiri-  lisli  on  (•crtiiiii  roiist'^,  li^ys,  liiiihors, 
;iih1  cifiks  oT  His  JSiiliiiniic  Miijcsly's  (loiniuioiis  in  Aiucricii : 

It  is  ii^^iccd  iM'twi'cii  tilt'  iiij^ii  fdiitrfictiiij;'  parties  tliiit  tlie  inliiiltit.iiilH  ut  liio  said 
I'nited  Slates  . ■(/(((//  liair,J'orcni',  in  coinmoii  iritli  titr  niihJcdH  of  Iliii  Urildniiir  Mdjiuli/,  (lie 
libeily  Id  lal\e  lisli  nl'  every  iiiiid  tin  that  part  of  tiii'  soiitlieni  enast  •»!'  Xewlonndluntl 
wiiieii  exleiids  tioni  iJape  If.ay  to  llie  lianiea  Islands;  on  the  western  and  nortliei'ii 
coast  (>r  New  lonndland,  from  tlit;  said  (Ja|ie  J{ay  to  the  (^iiirpoii  Islands;  on  Ihf  nhuiTH 
of  tlie  .Ma;;(lalen  Islainls,  and  also  on  the  eoasts,  hays,  harhois,  and  ereeUs  from  Moniit 
.J(ili,on  ihe  soiiihern  coast  of  Lalirador,  to  ami  tliron;;h  the  iStiails  of  licllcisle;  and 
thence  noilhw  ardly,  indelinitely,  alonj;  Ihe  ('oast,  irilliiiKl  i)rvjml'nx,.bLiij:.i>'Vi'}{'>iiHU{\l 
llic  r.rchi^in-  rijjliln  o/'  llic  Jliclsini  linij  Coiiqxuin  ;  and  that  the  American  lisliernieii  shall 
also  liave  liherl,\ .  foie\-er,  to  dry  and  enre  lisli  in  any  of  the  nnsettled  l>ays.  harliors, 
and  creeUs  of  liic  sonlhern  part  of  I  lie  coast  of  Newt'oiiniUand,  here  aliii\(!  doscril)etl, 
nud  uf  lli(  a)((sl  oi'  liahiad;ir;  Init  so  soon  as  the  same,  or  ««// />o/7ii>/(  //lovi;/',  siiall  bo 
siitth^l,  il  shall  not  he  lawful  for  tin!  said  lisliernieii  to  dry  or  cure  lish  at  such  iiurlioit 
•sr>  ,s(///((/ willidiii  previous  aureemeiit  for  hiicIi  purpose  with  the  inhahilants,  proprie- 
tors, or  possessors  of  tlie  jfrontnl. 

And  the  I'nited  .Slates  lieichy  ri!iiL)iiiice,./iL»rt'r('r,  any  liberty  heretofore  iMiJoytMl  or 
claimed  by  tlu^  inliahitaiits  then^of  lo  take,  ilry,  <>i'  curi!  lisli  uxi  or  within  three  iiiariiio 
miles  of  any  of  Ihe  coasts,  hays,  creeks,  or  harbors  of  His  niitannie  Majesty's  doiiiir- 
ioiis  in  America  not  included  within  tin;  iiho\e-mentioned  limits  :  Provided,  however, 
That  the  American  risherinen  shall  be  admitted  to  enter  such  bays  or  harbors  for  the 
piir|>ose  ol' ulicUcr.  (iiid  of  wjunniitj  (lainitiic^  tlicniii,  of  piircltitxiiii/  wood  and  ohiahiiiuj 
wutt:i\  itiid  for  no  oilier  jjitrixiKf  wliiitvrcr.  Jlnl  llicij  nIiiiII  lir  nndtr  '<iich  n':<lrirlionK  an  may 
br  »(■(■( .SMH)/  /()  pnrtnl  their  lalimj,  dryiiifj;,  or  curing  lish  tlieruiii,  or  in  any  other  iiiaiiiier 
n'holerer  abnsiiij;-  t\u'  ]tririliijcH  hereby  reserved  to  them. 

This  article  was  attceptetl  by  the  Aiin'iicaii  coiniui.ssionci's,  and  is 
idt'iitieal  witii  arlicU^  iucorponitt'd  in  the  convention.  (8  Shit,  at  Lanje, 
jxti/e  1' 18.) 

The  t'oinparison  of  this  i'.rticle  witli  tlie  article  siibtnitled  by  the 
Aiiierieau  coniinissioiK-rs,  on  the  17th  of  September,  shows 
that  the  only  material  change  made,  so  far  as  the  present  dis- 
cussion is  eoneeriied,  was  in  the  exclusion  of  the  word  "/ai//."  It  is 
represented  tiiat  the  "  bait"  referred  to  in  the  treaty  must  Inive  been 
bait  lor  "{'(»r/,"  which  were  eaujiht  in  those  waters,  as  the  mackerel- 
lisheries  in  tliose  waters  did  not  bej>in  till  several  years  al'ter  that  time. 
It  was,  therefore,  within  the  letter  and  s[>irit  of  the  cjonveiition  to  deny 
to  American  lishermen  the  right  to  cdteli  that  bait  in  those  waters. 
The  favorite  bait  for  the  nuuikerel  is  sai<l  to  be  caiiglit  on!  v  off  the  coast  of 


HllP.  .lime  II. 


i, 


je,  and  not  to  be  found  in  Canadian  waters.  It  thi.s  is  correct,  it 
could  not  have  been  intended  to  deny  to  our  fishermen  the  right  to^)»r- 
chase  that  bait  in  British  ports. 

Was  passed  in  the  Imperial  Parliament  the  "Act  to  enable  his  Ma- 
jesty to  make  regulations  with  respect  to  the  taking  and  curing 
fish  on  certain  imrts  of  the  coast  of  Newfoundland,  Labrador, 
and  His  Majesty's  other  possessions  in  North  Amerit^a,  according  to 
a  convention  made  between  Hia  Majesty  and  the  United  States  of 
America."  It  is  by  this  statute  declared  to  be  unlawful  for  persons, 
not  natural-born  British  subjects,  to  lish  for,  iu  a  foreign  vessel,  take, 
dry,  or  cure  any  lish  within  three  marine  miles  of  any  coasts,  bays, 
creeks,  or  harbors  whatever,  in  any  British  port  in  x\.merica,  not  in- 
cluded within  the  limits  specihed  and  described  in  the  first  article  of 
the  coinention  of  1818. 

It  is  further  declared  that  it  may  be  lawful  for  the  United  States  fish- 
ermen to  enter  into  such  bays  or  harbors,  for  the  purpose  of  shelter  and 

*Tlie  words  in  italics  were  inserted  by  the  British  comuilsslonors  in  lieu  (generally) 
of  other  words  erased  from  the  project  submitted  by  the  American  coimnissiuuers  ou 
the  17th  of  September.    Iu  some  cases  the  words  iu  italics  are  additious.    (See  ante.) 


\f' 


OENEUAL    AIM'KXDIX. 


283 


repair!  1 1, '4  (laiiiii.u'cs  tlicrcin,  iwid  of  iiurcliiisiii;^'  wood,  mikI  <»!'  olttaiiiiiis" 
water,  uihI  1(11' iio  otluT  jjii^posi' wliatt'vcr ;  tlial  tlic  ;j;()\ cnioi' of  Ncw- 
toiUKllaiid  is  invested  with  power  to  order  such  jjeisoiis  to  <h'part;  and 
that  persons  rel'iisiiii,'  to  (h'pait  alter  notice,  or  Me;;ieelin;^"  to  ('(Mil'orin  to 
re};tdatioMs.  shall  forl'eit  two  hundred  pounds.     {Suhim'.s  Fislierir.s,  Ml) I.) 

In  the  sprinfj;;  of  the  year  the  Ht'hooner  "(diaries"  was  sei/A'd  tor  ii 
l)reaeh  ol"  tiiis  act,  in  leturnin^'  to  a  harbor  a  second  time  alter  ^  _^ 

warnin;;'.  *'the   weather  beinj;'   tine   and    nu)derat(^  the    whole 
time."     {S.  IJ.v.  Ihn:  1 00,  IVld  Con.,  Ut  .scss.,  paije  o.) 

It  api>earin,i>' that  the  (Jharles,  durin;;'  iier  detention,  had  been  used  as 
a  15ritisli  ciiiiser,  tin;  vessels  captured   bv  her  were  restoi'.'d, 

'  |h'1     Iiin>'  ID 

and  ollicial  inl'ornuUion  thert'ot'  ;;jven.     {Ihitl.,  jku/c  11.) 

Mr.  \'aii;;hn  informed  Mr.  Clay  that  "the  Charles  had  been  reyidarly 
(condemned  in  the  vicivadiniralty  court  of  the  province  of  New  ,    , 

IJrnnswick,  and  tlnit  it  was  not,  e\[)ected  that  the  Covernnu'nt 
of  the  United  States  would  lend  further  countenance  to  the  cunii)laints 
of  the  owners."     {Ihid.,  p((ffc  .■)4.) 

It  does  not  appear  that  there  was  any  further  eorres[)ondeuce  about 
this  vessel. 

More  tu'  less  correspomlence  took  place  about  the  ••  Reindeer"'  and  the 
'•  Iluby,"  wliicli  were  rescued  by  force  after  having;' been  seized 
by  a  Ilritish  cruiser. 

The  hisl  letter  on  the  subject  (from  ^Ir.  Vaughn  to  Mr  Clay)  does  not 
appear  to  have  been  ever  answered.     From  that  time,  until  1>S.'>I) 
there  is  no  evidence  of  complaint  on  the  tiles     f  the  l)e[)art- 
ment  of  State,  so  far  as  known. 

Some  complaints  of  trespass  were  ma«le  by  (Jreat  Britain  this  year,  but 
on  invest i,i;ation  they  ai>i)eared  to  have  little  foundativ)n.     (//>., 
pacjcii  5o,  .")(},  57,  and  58.) 

In  this  year  the  statute  of  Xova  Scotia  was  passed,  auLhorizin;^'  oflicers 
to  go  on  board  vessels  hovering-  within  three  miles  of  the 
coast  or  harbors;  to  stay  on  board;  to  require  the  vessel  to  de- 
part;  to  brinj4'  it  into  [)ort  if  it  did  not  do  so  within  twenty  foui-  hours; 
to  examine  the  master  on  oatii ;  to  condemn  him  to  a  forfeiture  of  JGIOO 
if  he  did  n(  Inuike  true  answer;  and  also  anthorizin;^' a  forfeiture  of  the 
vessel  o"  carjio  fouiul  fishinj;'  within  forbidden  waters.  There  were 
manyot..('r  extraordinary,  onerous,  and  unjust  provisions  in  this  act, 
for  which  referviuee  is  made  to  the  act.  («S'.  Ex.  Doc.  100,  3'2(l  Con.,  lut 
>iess.,  page  108.) 

The  same  colony,  in  an  address  to  the  (Jueen,  prayed  for  "a  naval 
force  to  put  an  end  to  American  aggressious;"  to  which  tin?  colo- 
nial secretary  replied  that  "it  had  been  determined  tor  the  future 
to  station,  (luriny;  the  fishing  season,  an  armed  force  on  the  coast  of 
Nova  Scotia  to  enforce  a  more  strict  observance  of  the  treaty  by  Amer- 
ican citizens."    {Sahiiic'fi  Fisheries,  page  399.) 

The  seizures  which  followed  this  course  were  numerous,    {lb.,  page  400.) 

The  volununous  correspondence  which  grew  out  of  these  seizures  will 
be  found  in  the  Senate  Ex.  Doc.  already  cited,  pages  o9  to  103.  The  re- 
sults are  summed  up  in  a  report  from  the  acting  Secretary  of 
State,  Mr.  Vail,  {page  92,)  and  in  a  report  from  Lieutenant- 
Commanding  Paine  to  Mr.  Forsyth,  {page  98.)  Mr.  Vail  "  is  un- 
able to  state  whether,  in  the  cases  under  consideration,  there  has  been 
any  flagrant  infraction  of  the  existing  treaty  stipulations,"  {page  9.>.) 
He  appears  to  think  that  most  of  the  cases  were  connected  with  alleged 
violations  of  the  customs  laws.  Lieutenant  Paine  reports  that  "the 
authorities  of  Nova  Scotia  seem  to  claim  a  right  to  exclude  Americans 


Hiii.  ,\pnl  -Jif. 


H:)ii. 


Hlii. 


WIS),  A  111!.  U. 
Dec.  29. 


'li. 


284 


OENKRAL    Al  i'ENDIX. 


I 


Mir.  ■27. 


iVoiii  ;ill  liays,"  "iiiid  also  to  driiw  a  line  Ij'oni  liciKlIaiiil  to  liciKllaiid  ;" 
"that  tln'  |>ro\  iiic.ial  aiitlioiitifs  claim  a  ri;;lit  tt»  cxcIikIc  vessels.  miiIc.hs 
ill  actual  (listless:"' ami  'MvtHiM  exa(!t  that  American  lishermeii  shall 
have  Iteeii  supplied  on  leavin;;'  home  with  wood  and  water  lor  the  crnise." 

iMr.  I''ors\tli  inlormed  .Mr. Stevenson,  the  rnited.Stale.s  minister  in  Lon- 
doii,  that  the  provincial  ^'anthorities  i^laim  a  ri;;ht  to  exclude 
our  vessels  from  resorting;  ti>  their  juirts  unless  in  a(;tiial  dis- 
tress, and  American  vessels  are  accordin;L;ly  warned  tode|)art  oroideretl 
to  ^i'ct  under  way  and  leave  a  harbor  whenever  the  |>r(n  iiicial  custom 
li()iis(^  or  British  naval  ollicer  supposes,  without  a  lull  examination  "o| 
the  eircumstanees  under  which  they  entered,  that  they  have  i)een  there 
a  reasoiialde  time,"  and  instriieteid  him  to '••immediately  reiuoiistrate 
af^ainst  the  illej;al  and  vexatious  proceeding's  of  the  authorities  of  Nova 
Scotia  toward  our  lishermeii,  and  re(|uest  that  measures  he  forthwith 
adoi)ted  by  Her  .Majesty's  >;()veriimeiit  to  remedy  the  evils  arisiiiin'  out 
of  this  misconstriiclion  on  the  part  of  tlu^  provincial  authorities  of  their 
eonveiitioiial  ()blij;ations."  lie  also  juave  stroiij;'  and  explicit  iiistnu'- 
tioiis  as  to  the  Nova  Scotia  act  of  IS.'Jd.     (//>.,  patjis  l(((i-l(>S.) 

The  reasoniiij;' of  Mr.  Forsyth,  on  jiayes  107  and  IIKS,  upon  the  Nova 
Scotia  law  of  l.S.'Jti,  is  applicable,  without  changing'  a  word,  to  the 
Dominion  laws  of  l.StiS  ami  ISTO. 

I\lr.  Steveiivsoii  brought  to  Lord  Paliiierston's  notice:  1.  The  claim  to 
t'xclude  American  vessels  frtim  waters  "  within  three  iiiih-s  of 
a  liiM^  drawn  from  headland  to  headland,  instead  of  Irom  the 
indents  of  the  shores  of  the  provinces."  li.  That  the  authorities  of  Nova 
Scotia  had  "put  upon  the  i-tiiiulatioiis  of  the  treaty  [as  to  the  entry  to 
harbors,  ss.it. \  a  construction  dire<!tly  in  contlict  with  their  ol)iect,  and 
entirely  subversive  of  t)ie  rights  and  interests  of  the  citizens  of  the 
Unitcil  Stales."  3.  The  objectionable  law  of  Xova  Scotia.  I.  The  as- 
sertion, said  to  be  untenable,  "that  the  Gut  of  (Jaiiso  is  a  narrow  strip 
of  water  completely  within  and  <lividing  several  counti(vs  of  the  jirov- 
ince."     {Ih.,p(t<ie,s  113,  111,  (tiul  Hi).) 

It  resulted  IVoiii  this  note  that  the  law-olUcers  ol"  the  Crown  were 
iiKpiired  of  and  gave  their  opinions:  1.  Sustaining  the  colonial  '•head- 
land'' doctrine,  on  the  assumption  that  the  word  "headland"  is  used  in 
the  convention.  >Jo  such  word  is  there  found.  2.  Giving  an  answer  as 
to  the  use  of  ports,  which  is  immaterial  in  the  present  asiiect,  but  which 
was  laviirable  to  the  American  tisherinen  so  far  as  it  went.  3.  Say  noth- 
ing about  the  objectionable  clauses  in  the  law.  4.  Attirining  the  colonial 
doctrine  about  the  Gut  of  Canso.     {^iabiiw  Fisheries,  pagcii  405  u;u/ 400.) 

it  does  not  a\)pear  that  this  document  was  ever  otlicially  communi- 
cated to  this  Government. 

In  a  discussion,  however,  vvliicb  took  place  at  London,  be- 
tween Mr.  Everett  and  Lord  Aberdeen,  in  regard  to  the  schooner 
Wasliingtou,  captured  in  the  Bay  of  Fuudy,  these  views  of  the  Crown 
lavv-ollicers  were  oificiall.y  asserted,  but  without  referring  to  them. 
{S.  Ex.  Doc.  No.  100,  an  above,  page  120,  et  sefj.) 

Lord- Aberdeen  informed  Mr.  Everett  that  while  the  British 
..rch  10.  jTQygpmug^j;  ^[[^l  jjq^  concede  that  the  United  States  had  a  right 

to  the  fisheries  in  the  Bay  of  Fundy,  "  they  are  prepared  to  direct  i.heir 
colonial  authorities  to  allow  henceforward  the  United  States  fishermeu 
to  pursue  their  avocations  in  any  part  of  the  Bay  of  Fundy,  provided 
they  do  not  approach,  except  iu  the  cases  specified  iu  the  treaty  of  1818, 
within  three  miles  of  the  entrance  of  any  bay  on  the  coast  of  Nova 
Scotia  or  New  Brunswick."    {lb.,  page  136.) 


1843-'44. 


GKM:I!AI-    Ari'l'.NDIX. 


28r) 


•  Pt  17. 


.  .Inly.'). 


11.V.',  .Itilvil. 


In  tlii.s  loiijTf  (liHciissiou  Mr.  Stcvriisoir.s  coinpliiiiit.s  ii.s  to  the  ic.sii'ur- 
tions  k!;»(iii  tlic  ii.s«>  of  port.s  seem  not  lo  liavc  lu'c  i  iioIiimmI  h;  tlic  l»riti.sh 
^ovt'liiiiiciil,  iiiiU'ss  tlic  lii.st  cliiii.st'  (|iiotc(l  iVoiii  lioitl  Alu'idccii's  note 
to  Mr.  lOvi'H'tt  is  to  lio  ctjiistiiicd  a.s  an  iinpiicd  ii  as.scrtiou  of  tin'  doc- 
trim'. 

Sir  liolx'il  Pod's  {government  liavinji  nieanwliilo  fallen,  Lord 
Stanley  wrote  to  lionl  J"'allvlan(l  that    the    lliitish   ;;(>\('i'nnM'nt 
hail   ai)an(lone(l  the  intention  they  hati  on  the  snhjeet,  an<l   shonhl  ad- 
here to  the  strict  hotter  ol  the  treaties,  except  in  so  far  as  they  may  re- 
late* to  the  I  Jay  of  l"'nndy. 

No  colli.sion  of  anthority,  however,  oc^curred,  or  was  threat- 
ened, until  Mr.  Orampton  ^^ave  notic<^  that  a  force  of  war- 
sti'amers  ami  sailinj;- vessels  was  eominy;  to  tln^  fishin;;-j;rounds  to  pre- 
vent encroachments  of  vessels  helonjiinji:  to  eiti/ens  of  the  United  States 
on  the  fishinn/'ronnds  reserved  to  (Ireat  liritain.     (//>.,  jxific  l")t.) 

This  was  done  after  an  inelfecttual  attempt  to  iinlu(!e  the  United  States 
to  (M)nclnde  a  reciprocity  treaty.     {S((hiiii-\  Fisheries,  paijes  i;»(»,  f;>7,  l.'W.) 

]\Ir.  Webster,  Secirtary  of  State,  theriMipon  issued  a  c-ircnlar 
notice  to  the  American  lishermen.  The  following'  passa<;e  is 
(pioted  with  approbati«)n  in  the  |)amphle)  review  of  the  Presidents 
nu's.sajic  already  cited,  [ixine  l-"*,)  and  appears  [o  We  relied  upon  by  Can- 
adian authorities : 

It  would  ;i|»|>t'ar  tiiat  l>y  u  strict  and  ri;;id  (■oiistriictiou  "f  tliis  articdti  lisliliiif-v(>HS(!ls 
of  till-  I'liilfd  Stales  aro  iircidiidcd  tVoiii  riitcriiij^  tln'  'i.iys  or  linrliors  of  the  ItiitiHli 
lii'oviiiccs,  cxfM'pt  for  tlic  ((iirposn  of  slu'ltiii',  i'('i>iiiri"  •  dama;;us,  and  oldaininn  woix. 
and  wati  r.  A  liay,  as  is  Msnally  nndiMstood,  is  an  arm  or  vik-os^  (»f  tilts  sea  I'ntriin)^ 
from  t!.'  1  '  iiii  liftwci-n  t'ii])('s  iiinl  licadliinds,  and  tiui  form  i.>.  ui»iilicd  ciiiiiiUy  to  small 
an<l  luriif  tractsof  watiT  tlms  sitiiati'  1 ;  it  is  common  to  ^iicuk  of  Hudson's  \\a\,  or  tlio 
I'ay  of  Kiscay,  altlioiisiii  llicy  arc  very  lai'MC  tracts  of  water. 

The  ISrilish  antlioritii's  insist  tiiat  l';n;;land  has  a  rij;lit  t')driiw  ii  lints  from  headland 
to  Insadhiiitl,  anil  to  capture  all  American  lishermen  who  may  follow  thciir  pnrsiiits  in- 
sitle  ol'  that  line.  It  was  iintlonhleilly  iiii  oversitjht  in  the  convontion  t>f  l^l-*  to  mako 
so  lar.nc  a  coaeessioii  to  Knelaml,  since  the  I'liited  States  has  usually  coa-iiilei'eil  that 
those  vast  inlets  or  reccssos  oiij^lit  to  he  i)[)i>n(!d  to  American  lishormoii  as  tVocly  as  tlio 
sea  itself  to  within  throu  niarino  miles  of  tlits  shore. 

The  reviewer  claims  that  Mr.  Webster's  "sound  judft'mout  compc^lled 
him  to  recoj^nize  the  le{»al  force  of  the  British  claims  to  the  only  point 
then  in  (liai)ute,  viz,  the  headland  line.  {Review  of  PiesidcnVs  message, 
paf/e  hi.) 

To  reach  that  result  he  suppresses  the  following  language  from  the 
close  of  the  same  circular : 

Not  ((fjrcdiifi  that  the  coHHtrnction  thus  put  upon  the  treaty  in  conforma1>!e  to  the  intentions 
of  the  contruetinti  parties,  this  in  formation  is,  however,  iiiailo  puldie  to  the  end  that 
tbo.so  coucenieil  iu  the  American  lisht;rio.s  may  perceive  how  the  case  at  present  stauds 
and  bo  on  their  guard.     {Sal>ine's  Fisheries,  page  441.) 

The  provincial  secretary  of  Nova  Scotia  issued  a  notice  that 
"  No  American  fishing-vessels  are  entitled  to  commercial  privi- 
leges iu  provincial  ports,  but  are  subject  to  forfeiture  if  found  engaged 
in  traffic.  The  colonial  collectors  have  no  authority  to  permit  freight  to 
be  landed  from  such  vessels,  which,  under  the  convention,  can  oidy  en- 
ter our  ports  for  the  purposes  specified  therein,  and  lor  no  other."  {Ee- 
vieiv  of  Fresidenfti  message,  page  12.) 

The  case  of  the  "  Washington  "  (one  of  the  vessels  whose  seiz- 
ure was  discussed  by  Mr.  Everett)  came  before  the  joint  com- 
mission for  settlement  of  claims,  in  London,  and  on  disagreement  of  the 
commissioners  was  decided  by  the  umpire,  (Mr.  Joshua  Bates,)  who 
said: 

The  question  turns,  so  far  as  relates  to  the  treaty  stipulations,  on  the  meaning  given  to 
the  word  "  bays"  in  the  treaty  of  1783.    By  that  treaty  the  Aoiericaua  had  uo  right  to 


1H.M-'M. 


,  <■ 

■'!, 


Mi 


■  -jiKl 


286 


GENERAL   APPENDIX. 


18J3,  July  IH. 


dry  and  euro  fish  on  tlio  shores  and  hays  of  Newfouiidhiiid,  hut  thoy  liiid  that  riijlit  on 
the  coukIs,  haijH,  harbors,  and  creekn  of  Nova  Scotia  ;  and  as  tliey  must  lanil  to  (jore  lisli 
on  the  shores,  hays,  and  creeks,  they  were  evidently  adniitt'.d  to  tins  s!i;)r(!s  of  the  hicin, 
(S'c,  By  tlie  treaty  of  1818  the  same  rij^ht  is  granted  to  cure,  lish  on  the  coasts,  hays, 
&c.,  of  Newfoundhvnd,  hilt  tlie  Americans  reliiifinisli  that  rijjfli^  ««'?  //»'■  ri'/h'  to  Jiih 
within  three  milex  of  tlie  voantn,  liaiiH,  .J't'.,  of  Xora  Scotia.  Takinji;  it  for  j;ru;it('(l  tliat  tlie 
framers  of  the  treaty  iidonded  that  tlie  words  "  hay  or  hays  "should  iiavc  tin;  same 
meaninfj  in  all  eases,  and  no  mention  luMnj;;  made  of  headlands,  then;  apiicars  no  doubt 
that  the  Washington,  in  fishing  ton  miles  from  the  shore,  violated  no  stipulations  of 
the  treaty. 

It  was  urged,  on  hehalf  of  the  British  government,  that  hy  coasts,  hays,  Ac,  is  un- 
derstood an  imaginary  line,  drawn  along  the  coast  from  headland  to  headland,  and 
that  the  jurisdiction  of  Her  Majesty  extends  thuie  marine  miles  outside  of  this  line  : 
thus  eloslng  all  the  hays  on  the  coast  or  shore,  and  that  gnsat  body  of  water  (;alliid  the 
Bay  of  Finnly,  against  Anuuicans  and  others,  making  the  latter  a  British  I)ay.  This 
doctrim>  of  headlands  is  new,  and  has  reccnved  a  jiroper  limit  in  the  convention  be- 
tween France  and  Great  Britain  of  'M  August,  18.VJ,  in  whi(!li  "  it  is  .igri'Ml  tliat  tlie 
distance  of  three  miles  iixiid  as  the  gencu'al  limit  for  the*  exclusive  right  of  fi'^ln'iy  upon 
the  coasts  of  the  two  countries  shall,  with  respect  to  hays,  the  moutlis  of  whicli  ilo  not 
exceed  ten  miles  in  width,  he  measured  from  a  straight  line  drawn  from  iieailland  to 
headland." 

The  Bay  of  Fundy  is  from  G.')  to  To  miles  wide  and  130  to  140  miles  long;  ii  lias  seve- 
ral hays  on  its  coasts;  thus  the  word  hay,  as  apjilied  to  this  great  body  of  water,  has. 
the  same  miianing  as  that  applied  to  the  Bay  of  Biscay,  the  Bay  of  Bengal,  over  which 
no  nation  can  have  the  right  to  assume  the  sovereignty.  One  of  tlit;  headlands  of  the 
Bay  of  Fnndy  is  in  the  United  States,  and  ships  hound  to  I'assanuuiuoddy  must  sail 
through  a  large  space  of  it.  The  islands  of  Grand  Meiiaii  (British)  and  Little  Mcuan 
(Americau)  are  situated  nearly  on  a  line  from  headland  to  headland.  These  islands, 
as  represtuited  in  all  geographies,  are  situ.ate  in  the  Atlantic  Ocean.  The  ((melusion  is, 
therefore,  in  my  mind  irresistible  that  the  Bay  of  Fnndy  is  not  a  British  liay,  nor  a  bay 
within  the  meaiiiiig  of  the  word,  as  used  in  the  treaties  of  1783  and  Lvild.  {lUport  of 
Decinioiiti  of  Comminsion, imijc  181.) 

Mr.  llicliiirtl  Ku.sh,  one  of  the  negotiators  of  the  trenty  of  IS18, 
wrote  to  tlie  Secretary  of  State,  (referring  to  tliat  iu.striunent:) 
"  In  signing  it  we  believe  that  we  retained  the  right  of  (ishiiig  in  the 
sea,  whether  called  a  bay,  gnlf,  or  by  whatever  term  designated,  that 
washed  any  part  of  the  coast  of  the  British  North  Aineri(;an  [novinces, 
with  the  simple  exception  that  we  did  not  come  within  a  mdvine  Imi/uc 
of  the  shore.  *  *  #  #  #  We  inserted  the  clanso  of  renunciation. 
The  British  plenipotentiaries  di<l  not  desire  it." 

The  conclusion  of  the  reciprocity  treaty  rendered  the  reas- 
sertion  of  the  disputed  claim  by  the  Xova  Scotian  .secretary  of 
no  iiuportance,  and  disposed  of  all  the  other  questions  for  the  time 
being.     (10  Stat,  at  Luyge,  puge  108J>.) 

iSTotice  was  given  to  abrogate  the  reciprocity  treaty,  the  abro- 
gation to  take  effect  in  one  year  from  tlie  notice. 

The  Canadian  government  then  resorted  to  the  sysnim  of 
licensing  American  lishermen  to  fish  in  the  in-shore  lisheries. 
The  number  of  licenses  taken  out  the  first  year  is  reported  to  have  been 
Soi.  {lieriew  of  President's  messaf/e,  page  23.)  The  fee  is  stated  to  have 
been  fifty  cents  per  ton.     {Manuscript  review  of  the  review,  page  27.) 

The  license-fee  the  next  year  was  one  dollar  per  ton.    {^^a)lH■ 
script  review,  ttrc,  page  27.)    Tbe  number  of  licenses  was  281. 
{Review,  tOc,  2>«/;e  23.) 

The  license-fee  was  again  doubled,  viz,  to  two  «lollars  per  ton, 
{Ms.  review,  tl^c,  page27',)  only  fifty-six  licenses  were  taken  out 
in  1808,  and  in  the  following  year  (L8(>9)  only  twenty-five  licen.^es  were 
taken  out.     {Review  of  President's  message,  page  23.) 

The  Dominion  "  act  respecting  fishing  by  foreign  vessels," 
passed  in  18G8,  and  the  third  section,  amended  in  1870,  con- 
tains, among  other  provisions,  the  following :  Section  1,  author- 
izing the  granting  of  licienses.    Section  2,  authorizing  officers  to  board 


1854,  Jane  f). 


1*).  M:ir.  \7 


HOI). 


188-. 


is(>8-'(ia- 


ISflS,  Mny  22. 
1870.  Mil}-  12. 


t  ri^i;lit  oil 
1)  (!iin>  li.sli 
f  fbf  1)11  •in, 
lists,  hays, 
'//('  to  Jhh 
•d  tliiit'tlio 

'   till!   SillUll 

s  no  doubt 
iiliitioiis  of 

&c.,  is  iiii- 
llaiid,  and 
tliis  lino  ; 
call.id  the 
l)ay.     Tiiis 
•cntion  ln!- 
tliut   till- 
ill  cry  upon 
icli  do  not 
ijadhind  to 

t  lias  si'vt"- 
wattT.  lias 
>\cr  whicli 
inds  ol"  the 
J-  must  sail 
ttlc  Mi'iian 
■sc  islands, 
nclnsion  is, 
)•,  nova  bay 
(Jii-porl  of 

\,-  of  1818, 
Lrmnent:) 
ii,o-  in  the 
itcd,  tluit 
n-oviuces, 
ine  lc(((jiu' 
iiiciiitiou. 

tlie  reus- 

jivtary  of 

the  time 

the  abro- 

syst<Mii  of 
'  lisluM'ies. 
Iiavo  been 
(1  to  hax'e 
ic  27.) 
.  {Maim- 
i  was  281. 

PS  per  ton, 
taken  out 
iiiHes  were 

I  vessels," 

1870,  eon- 

1,  author- 

8  to  board 


GENERAL   APPENDIX. 


287 


ships,  vessels,  or  boats  within  any  harbor  of  Canada,  or  hoverin<2C  withiu 
three  marine  miles  of  the  coasts,  &c.,  and  to  stay  on  board.  Section  3, 
as  amended,  provides  that  any  one  of  such  ofiicers,  »S:e.,  may  brinjiaiiy 
ship,  vS:c.,  hovering,  &c.,  into  port  and  search  her  cargo ;  and  may  also 
examine  the  master  on  oath  touching  the  cargo  and  voyage  ;  and  that 
if  true  answers  are  not  given  the  master  shall  forfeit  $100 ;  and  that  if 
the  shij),  »S:e.,  be  foreign  or  not  navigated  according  to  the  laws  of  the 
United  Kingdom  or  Canada,  and  shall  have  been  found  iishing  or  pre- 
paring to  lisli,  or  to  have  been  tishing  (in  British  wjiters)  within  three 
marine  miles  of  any  of  the  coasts,  &c.,  not  included  in  the  limits  named 
in  the  convention  of  1818,  the  ship,  &c.,  with  its  tackle,  &c.,  shall  be  for- 
feited. Section  4  ])rovides  tlHit  every  person  opposing  an  oHieer  shall 
forfeit  .$800.  Section  10  provides  that  in  case  of  seizure  the  hiinlcti  of 
proving  the  iUcgaliti/  shall  he  upon  the  owner  or  claimant.  Section  VI  re- 
quires heavy  security  to  be  given  before  a  seizure  can  be  contested. 
Section  14  limits  a  right  of  action  for  an  illegal  seizure  to  three  nu)nths. 

This  statute  contains  in  an  exaggerated  form  the  worst  features  of  the 
i!>rova  Scotia  statute  of  183G. 

Mr.  Forsyth,  in  his  instructions  to  Mr.  Stevenson,  already  alluded  to, 
said  that  that  statute  was  a  "violation  of  well-established  i)rin('iples  of 
the  connnon  law  of  England,  and  of  the  principles  of  all  Just  powers 
and  of  all  civilized  nations,  and  seemed  to  be  expressly  designed  to  en- 
able ller  ]\I;ijesty's  authorities,  with  perfect  impunity,  to  seize  and  con- 
fiscate xVmerican  vessels,  and  to  embezzle,  almost  indiscriminately,  the 
pro])erty  of  our  citizens  employed  in  the  fisheries  on  the  coasts  of  the 
British  i»ossessions."  Mr.  Everett  stigmatized  it  as  "possessing  none 
of  the  qualities  of  the  law  of  civilized  states  but  its  forms."  And  i' 
was  styled  by  a  Senator  of  that  time  as  "evidently  designed  to  legaliz' 
marauding  upon  an  industrious,  enterprising  class  of  men,  who  haven  » 
means  to  contend  with  such  sharp  and  unwarrantable  weapons  of  wa:- 
fare."     {Sabine' h  Fisheries^  page  478.) 

Mr.  Thornton  ofVuMally  communicated  to  Mr.  Fish  the  inten- 
tion of  the  ('anadian  government  to  issue  no  more  licenses  to 
American  fishermen. 

Mr.  Thoiiiton  communicated  oflicially  to  the  Department  the 
instructions  issued  totiiecommanderof  the  British  inaval  forces, 
by  which  itwouldappear  that,  notwithstanding  the  decision  of  the  umpire 
in  1853,  Her  3Iajesty's  government  in  1800  were  "clearly  of  the  opinion 
that  by  the  convention  of  1818  the  United  States  have  renounced  the 
right  of  tishing  not  only  within  three  miles  of  the  colonial  shores,  but 
within  three  miles  of  aline  drawn  across  the  mouth  of  any  Biitish  bay 
or  creek ;  but  that  they  are  not  disposed,  for  the  present,  to  enforce 
what  they  regard  as  their  rights."    [Foreign  h'elations,  1870,  2>'ig(^  410.) 

The  whole  correspondence  in  the  book  last  cited,  from  page  407  to 
page  434,  bears  directly  upon  the  issues  now  raised. 

Mr.  Tliornton  informed  Mr.  Fish  thai  he  had  "  received  in- 
structions from  Earl  Granville  to  explain  to  Mr.  Fish  that  the 
instructions  resi)ectiiiig  the  limits  within  which  the  prohibition  of  fish- 
ing is  to  be  sMiforced  against  the  United  States  fishermen  are  not- to  be 
considered  as  constituting  an  arrangement  between  the  governnu'iits  of 
the  United  States  and  of  Great  Britain,  by  which  Canadian  rights  are 
waived,  or  the  United  States  flshermen  invested  with  any  privilege." 

7.-SUMMAKY  OF  THE   CONCLUSIONS   ESTABLISHED  BY  THE   FOK'KfJOING 

REVIEW. 

I.  That  the  acquisition  of  the  right  to  American  flshermen  to  flsli  on 
the  in-shore  flslieries,  from  which  they  are  now  excluded,  is  more  im- 


Wro.  Apri 


IH,-0,  June  3. 


1h;i).  .Iiilr'^1. 


»: 


288 


GENERAL   APPENDIX. 


portant  as  removing  danger  of  collision  than  as  of  great  intrinsic  value. 
Its  money-value  is  probably  overestimated  by  the  Canadians. 

II.  That  the  British  hendland  doctrine  has  no  foundation  in  the  treaty, 
has  been  decided  against  Great  Britain  in  a  cause  where  it  was  the  only 
issue,  and  is  now  insisted  upon  theoretically  rather  than  practically . 

III.  That  the  right  now  asserted  to  exclude  American  fishermen  from 
the  open  ports  of  the  Dominion  ;  to  prevent  them  from  purchasing  bait, 
supplies,  ico,  »&c.;  to  prevent  them  from  transshipping  their  iish  inbDud, 
under  color  of  the  provisions  of  tbe  convention  of  1818,  is  an  assump- 
tion and  a  construction  of  that  instrument  which  was  never  acquiesced 
in  by  the  United  States ;  and  is  carrying  out  in  practice  provisions 
which  were  proposed  to  the  United  State*  commissioners  by  fhe  Brit- 
ish commissioners  in  1818,  and  were  rejected  by  the  former. 

IV.  That  the  mackerel  fishery,  out  of  which  the  trouble  mostly  coiiies, 
is  a  matter  that  has  come  into  existence  since  the  negotiation  of  the 
treaty,  and  it  is  a  subject  for  consideration  whether  the  terms  of  the 
convention  are  fairly  applicable  to  it.  ,1 

8.— REMEDIES. 

It  is  suggested  that  this  class  of  questions  may  be  adjusted,  either — 

I.  By  agreeing  upon  the  terms  upon  which  the  whole  of  tiie  reserved 
fishing-grounds  may  be  thrown  open  to  x\merican  fishermen,  which 
might  be  acconqjanied  with  a  repeal  of  the  obnoxious  laws,  and  the  ab- 
rogation of  the  disputed  reservation  as  to  ports,  harbors,  ike,  &c. ;  or, 
failing  that — 

II.  By  agreeing  upon  the  construction  of  the  disputed  renunciation  ; 
upon  the  principles  upon  which  a  line  should  be  run  by  a  joint  (jommis- 
sion  to  exhibit  the  territory  from  which  the  xVmerican  fishernu'u  are  to  be 
excluded;  and  by  repealing  the  obnoxious  laws,  and  agreeing  upon  the 
measures  to  be  taken  for  enforcing  the  colonial  rights,  the  penalties  to 
be  inflicted  for  a  forfeiture  of  tl^i  same,  and  a  mixed  tribunal  to  enforce 
the  same.  It  m.ay  also  be  well  to  consider  whether  it  should  be  further 
agreed  tliat  the  fish  taken  in  the  waters  open  to  both  nations  shall  be 
admitted  free  of  duty  into  the  United  States  and  the  British  North 
American  Colonies. 

In  addition  to  the  authorities  hereinbefore  cited,  there  is  in  the  ar- 
chives of  the  ])ep{irtment  of  State  a  copious  and  well-arranged  memoir 
upon  the  subject  of  the  fisheries,  by  Eichard  D.  Cutts,  esq.,  of  the  Coast- 
Survey,  which  will  be  placed  at  the  disposal  of  the  commissioners. 


LW'.        / 


K'l  H 


IlI.-NAVIGATION  OF  THE  ST.  LAWRENCE. 


m 
m 


The  rresident  states  in  his  Annual  Messajje  (Deoeinbei,  1870)  that 
this  river  constitntes  a  material  outlet  to  the  ocean  for  eiy;ht  States,  with 
an  aggregate  population  of  al)out  17,000,000  inhabitants,  and  with  an 
nggregat^  tonnage  of  001,307  tons  upon  the  waters  which  discharge 
into  it. 

During  the  administration  of  Mr.  John  Qnincy  Adams,  Mv.  Clay  de- 
monstrated the  natural  right  of  the  citizens  of  the  United  States  to  the 
navigation  of  this  river,  claiming  that  theactof  the  congress  of  Vienna, 
ill  opening  the  lihine  and  other  rivers  to  all  nations,  showed  the  judg- 
ment of  European  jurists  and  statesmen  that  the  inhabitants  of  a  coun- 
try through  which  a  navigable  river  passes  have  a  natural  right  to  en- 
joy the  navigation  of  that  river  to  and  into  the  sea,  even  though  [)assing 
through  the  territories  of  another  power.  This  right  does  not  exclude  the 
CO  equal  right  of  the  sovereign  possessing  the  territory  through  which  the 
river  debouches  into  the  sea  to  make  such  regulations  relative  to  the 
police  of  the  navigation  as  nmy  be  reasonably  necessary ;  but  those  reg- 
ulations should  be  framed  in  a  liberal  spirit  of  comity,  and  should  not 
impose  needless  burdens  upon  the  commerce  which  has  the  right  of 
transit.     (0  Foreifpi  Relations,  folio paycs  757  to  777.) 

If  the  claim  made  by  Mr.  Clay  was  just  when  the  population  of  St  ites 
bordering  on  the  shores  of  the  lakes  was  only  tiiree  nnllion  four  luuulred 
thousand,  it  now  derives  greater  force  and  equity  from   the  increased 
])opulation,  wealth,  production,  and  tonnage  of  the  States  on  the  Cana- 
dian frontier.     Since  Mr.  Clay  advanced  his  argument  in  behalf  of  our 
right,  the  principle  for  which  he  contended  has  been  frequently,  and  by 
various  nations,  recognized  by  l.iw  or  by  treaty,  and  has  been  extended 
to  several  other  great  rivers.    Bj^  the  treaty  concludeil  at  Mayence,  in 
1831,  the  Illiine  was  declared  free  from  the  point  where  it  is  lirst  navi- 
gable into  the  sea.    By  the  convention  between  Spain  and  Portugal, 
concluded  in  1835,  the  navigation  of  the  Douro,  thioughout  its  whole 
extent,  was  made  free  for  the  subjects  of  both  crowns.     In  1853  the  Ar- 
gentine Confederation,  by  treaty,  threw  open  the  free  navigation  of  the 
Parana  and  the  Uruguay  to  the  merchant-vessels  of  all  nations.     In 
185(5  the  Crimean  war  was  closed  by  a  treaty  which  provided  for  the  free 
navigation  of  the  Danube.     In  1858  Bolivia,  by  treaty,  declared  that  it 
regarded  the  rivers  Amazon  and  La  Plata,  in  accordance  with  lixed 
l>rin('iples  of  national  law,  as  highw.iys  or  cliannels  opened  by  nature 
for  the  commenre  of  all  nations.     In  185!>  the  Paraguay  was  made  free 
by  treaty,  and  in   December,  18(50,  tlie   lOmperor  of  iiiazil,  by  imju'rial 
decree,  declared  the  Amazon  to  be  open,  to  the  frontier  of  Brazil,  to  the 
merchant-shii)s  of  all  nations.     Sir  Robert  Pliillimore,  the  gieatest  liv- 
ing British  authority  on  this  subject,  while  asserting  the  abstract  riglit 
of  the  British  <!laim,says:  "It  seems dillicult  todeny  that  Creat  Britain 
may  ground  her  refusal  upon  strict  laiv;  but  it  is  equally  dirticult  to 
deny,  first,  that  in  so  doing  slie  exercises  harshly  an  extreme  and  hard 
law ;  secondly,  that  her  conduct  with  respect  to  the  navigation  of  the 
St.  Lawrence  is  in  glaring  and  discreditable  inconsistency  with  her  con- 
duct with  respect  to  the  navigation  of  the  Mississippi.     On  the  grouiul 

19  H 


I 


W  I' 


?■? 


290 


GEXKRAL    Al'PENDIX. 


that  she  possesses  a  small  domain,  in  which  the  Mississipi)i  took  its  rise, 
she  insisted  ou  the  right  to  navigate  the  entire  vohime  of  its  waters. 
On  the  ground  that  she  possesses  both  banks  of  the  St.  Lawrence  where 
it  disembogues  itself  into  the  sea,  she  denies  to  tlie  United  States  the 
right  of  navigation,  though  about  half  the  waters  of  Lakes  Ontario, 
Erie,  Huron,  and  Superior,  and  the  whole  of  Lake  Michigan,  through 
which  the  river  tiows,  are  the  property  of  the  United  Stat 's."  (See 
Phillimore's  International  Law%  vol,  1,  page  107  ct  setj.,  where  the  au- 
thorities are  collected  and  reviewed.) 

Tlie  canals  in  aid  of  the  lake  and  Saint  Lawrence  navigation  are  : 
1.  The  Sault  Ste.  Marie  Canal,  in  the  dominions  of  tlie  United  States. 
Vessels  between  Lake  Huron  and  Lake  Superior  must  pass  through 
this  canal.  2.  The  Saint  Clair  Canal,  in  the  dominions  of  tiie  United 
States,  which  is  a  deepining  of  the  channel  to  the  depth  of  fourteen 
feet.  3.  The  Welland  Canal,  in  ]>ritish  dominions,  from  Luke  Erii' 
to  Lake  Ontario.  4.  Several  canals  between  Lake  Ontario  and  tide- 
water, in  the  aggregate  about  forty  miles  in  length.  ."».  The  canal 
between  Lake  Chamjdain  and  the  river  Saint  La\vren<'e.  Neither  of  the 
Canadian  canals  have  at  present  the  capacity  of  the  Auuni<'an  cauitls, 
A  confidential  memorandum  was  submitted  by  (Jreat  liritain 
as  the  basis  of  proposed  arrangements  on  the  sabject  of  the 
navigation  ot  the  Saint  Lawrence,  and  other  inland  waters  of  IJritish 
!North  America,  &c.  This  was  in  substance  as  follows:  That  if  a  satis- 
factory reciprocity-treaty  could  be  made,  the  United  States  should  be 
restored  to  the  enjoyment  of  the  fisheries  as  under  the  old  r«'eiprocity- 
treaty;  and  also  to  the  navigation  of  the  inland  waters  of  Caiuula  : 
provided,  further,  that  like  permission  in  the  United  States  shouhl  be 
granted  to  Canada.  Canada  was  also  willing  to  further  agree  to  enlarge 
and  in)i)rove  the  access  to  the  ocean,  provided  she  could  have  assurance 
of  the  permanency  of  the  anangement  for  reciprocity.  The  proposal 
further  contemplated  throwing  open  the  coasting-trade  to  each  party; 
reciprocal  patent  and  co])yriglit  laws ;  arrangements  for  a  reciprocal 
transit  trade;  extension  of  the  provisions  of  the  extradition  treaties, 
and  are-adjustment  of  the  Canadian  excise-duty. 

No  steps  were  taken  in  the  direction  of  carrying  out  these  suggestions. 

The  present  importance  of  some  of  these  points  may  be  estimate«l 
from  the  following  tables  for  the  fiscal  year  ending  .June  .'50,  ISH'J: 

l.—Iniimrts  into  (Jiichic  dud  Ontario. 


riiur. 


Outui'io  . 

T0t4tl 


Foreign  guuds — 


Tiitiil  impoits  (if    Xtit  tlip  prodiire    'l')w  i)ro<Iii<'(i  ot' 
liiifiun  yuixls.     I      (if  the  Unitt'd  ,      the    United 
Slates,  iiuiioi't-  I      StiiteH,  import- 
ed via  tlie  Uid- I      ed   from    tlie 
ted  Stiitcii.  I' iiited  States. 


J;'!), -.45,  177 
■23,  7d4,  7«-l 


Jti,  i^no,  207 

4,  fsn,  j-Ji 


<ti,  170,  07- 
14,5!h',  5::i 


53,  SO!),  941 


11,  740,  0;t5i 


•JO,  7(y,  (I5.t 


k  Its  rise, 
s  waters, 
ce  wliert' 
tales  the 
Oiitiuio, 
tlii'onaii 
s/'  (See 
i  the  ail- 

tioii  are  : 
(1  States. 
tlir()n}»ii 
o  United 
fourteen 
ike  Erie 
ind  tide- 
lie  canal 
ler  of  the 
:'anals. 
t  Britain 
•t  of  the 
r  IJiitish 
\'  a  satis- 
hould  be 
'iproeity- 
Canada  : 
iiouhl  be 
)  enhirge 
ssaranee 
proposal 
ih  party ; 
eciprocal 
treaties, 

ji^estions. 
stiniatetl 


prndiicii  of 
!  IJ  11  i  1 1'  il 
itoH,  iiiipoit- 
from  till' 
lited  Htatfti. 


«(),  170,  07- 
H,  5!W,  J7:. 

vio,  7(1'.',  (i:.;f 


s  *-. 


I? 
2^ 


"^5 


3    * 


5"'^  S 


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=  c  c 


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i  «   « 

"ti  "^i  "*- 


c 

cS 

a 

a 

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a 

a 

ci 

U 


s    a 


u 


GENERAL    APPENDIX. 


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IV.-IIECIPROCAL  TRADE  BETWEEN  THE  UNITED  STATES  AND 

THE  DOMINION  OF  CANADA. 


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Previously  to  1845  the  trade  of  the  United  States  and  otbor 
nations  witli  the  British  provinces  of  Canada  and  others  north 
and  east  of  the  United  States  was  burdened  with  a  system  of  ditteren- 
tial  duties  winch  diacri  rains  ted  ajaainst  foreign  ijnportations  in  favor  of 
British  to  such  an  extent  as  to  prevent  any  extensive  importations  into 
those  provinces  from  the  United  States. 

Under  these  circumstances  om*  exports,  which,  for  the  four  years  pre- 
ceding the  reciprocity-treaty,  averaged  about  eleven  millions  of  dollars 
per  annum,  did  not  average,  for  the  i>eriod  extending  from  1821  to  1844, 
lour  millions  per  annum.  {Estimated  from  table  3,  1st  division,  If.  li. 
Ex.  Doc,  3Sth  Confj.,    1st  sess.) 

In  1845  the  liritish  government  changed  their  colonial  commercial 
policy  bj'  authorizing  the  Canadian  legislature  to  regulate  their  own 
tariff.  In  1846  the  Canadian  legislature  removed  the  existing  dill'eren- 
tial  duties,  and  admitted  American  manufactures  and  foreign  goods, 
purchased  in  the  American  markets,  on  the  same  terms  as  those  from 
Great  Britain.  This  change  gave  a  considerable  impetus  to  importa- 
tions from  the  United  States,  so  that  by  the  years  1851-'52-'53  they 
were  upward  of  twelve,  ten  and  a  half,  and  thirteen  millions  of  dollars, 
respectively.  {S.  Ex.  Doc.  No.  1,  32d  Conf).,  Ist  ,sess.,  p.  85.)  {Estimated 
from  table  3,  1st  division,  H.  R.  Ex.  Doc.,  3Sth  Cong.,  1st  scss.) 

A  proposition  for  a  reciprocal  relaxation  of  commercial  restric- 
tions between  the  United  States  and  the  British  North  Ameri- 
can provinces  was  presented  by  Mr.  John  F.  Crarapton,  the  charge 
d'affaires  of  Great  Britain,  in  a  note  of  the  22d  March,  1849,  which, 
with  the  correspondence  to  which  it  led,  is  to  be  found  in  the  congres- 
sional documents. 

President  Taylor's  message,  transmitting  this  correspondence 
to  the  House  of  Bepresentatives,  submits  to  Congress  the  expe- 
diency of  effecting  an  arrangement  for  a  free  trade  between  the  United 
States  and  the  provinces  in  their  natural  productions,  providing,  also, 
for  the  free  navigation  of  the  Saint  Lawrence  and  of  the  canals  connect- 
ing it  with  the  lakes. 

]\Ir.  Packenham,  the  British  minister,  had,  in  1840,  commu- 

184fi  '  7  7" 

nicated  with  tlie  Secretary  of  the  Treasury,  (Hon.  Itobert  J. 
Walker,)  who  immediately  submitted  the  matter  to  the  Government; 
and  Mr.  Crampton  aga'u  brought  the  subject  before  him  in 
1848,  in  consequence  of  which  a  bill  was  drawn  up  by  Mr. 
Grinnell  of  the  Committee  on  Commerce  of  the  House  of  Kepresenta- 
tives,  and  its  adoption  recommended  by  the  Secretary  of  the  Treasury 
in  a  letter  to  that  committee  of  1st  of  May,  1848.  The  bill  was  passed 
by  the  House  of  Representatives,  but  was  not  voted  upon  that  session 
by  the  Senate.    {Ex.  Doc.  No.  04,  H.  R.,  31st  Cong.,  1st  session.) 

Mr.  Crami)ton,  on  the  25th  of  June,  1840,  wrote  to  the  Sec- 
retary of  State,  Mr.  Clayton,  inclosing  a  memorandum  drawn 
up  by  Hon.  William  Hamilton  Merritt,  one  of  the  (Janadian  cabinet, 
sent  to  AVasbington  to  ascertain  the  decision  of  the  United  States.    The 


1850. 


GENERAL    APPENDIX. 


293 


••■•  ■..a 


)  i 


\ND 


4W. 


memoraiuluin  reviews  the  efi'orta  made  by  the  provincial  government, 
and  the  notice  given  by  Hon.  Mr.  Robinson,  in  tlie  provincial  parliament, 
of  an  address  to  the  Queen,  praying  for  a  return  to  protection,  &c.,  in- 
closes c()i)y  of  a  letter  from  Mr.  Grinnell,  of  the  Committee  on  Commerce, 
to  Hon.  \l.  J.  Walker,  and  Mr.  Walker's  reply  meets  objections  to  reci- 
procity, and  elaborates  considerations  in  favor  of  it. 

INIr.  Grinnell  to  Mr.  Walker,  April  28,  1848,  asks  his  views 
on  reciprocal  free  trade  in  the  articles  of  the  growth  or  pro- 
duction of  the  provinces  and  the  United  States,  respectively. 

Mr.  McC.  Young  replies  for  Mr.  Walker,  warmly  approving  it.    The 
Canadian  bill  on  the  subject  is  given,  and  is  said  to  be  the  exact  coun 
terpart  of  the  bill  before  Congress. 

Mr.  Clayton  wrote  to  Mr.  Crampton  20th  June,  18U),  in  reply 
to  his  note  of  the  diiy  before,  which  inclosed  the  memorandum 
nuide  by  Mr.  Merritt.  As  a  measure  atf'ecting  the  revenue,  the  proposed 
arrangement  would  be  referred  to  Cot)gress,  before  whom  a  copy  of  the 
papers  would  be  laid.  Kefers,  as  furnisliing  a  British  example  for  this, 
to  Mr.  Bancroft's  efforts  to  negotiate  at  London  a  commercial  treaty,  in 
1847,  when  the  necessity  of  a  similar  reference  to  Parliament  was 
pointed  out  to  him  ;  and  to  the  failure  of  the  reciprocity- bill  in  the  Sen- 
ate, after  considerable  debate,  when  a  bare  majority  would  have  carried 
it,  as  an  indication  that  a  treaty  having  the  same  objects  in  view  could 
not  be  expected  to  obtain  the  requisite  majority  of  two-thirds.  {Ro. 
Repti.  Ex.  Doe.  Xo.  04,  'dint  Congress,  1st  session.) 

President  Fillmore's  annual  message  of  2d  December,  1851, 
invites  the  attention  of  Congress  to  the  question  of  reciprocal 
trade  with  British  provinces;  states  that  overtures  for  a  convention 
have  been  made,  but  suggests  that  it  is  preferable  that  the  subject 
should  be  regulated  by  reciprocal  legislation.  Documents  submitted 
showing  the  offer  of  British  government,  ami  measures  it  may  adopt,  if 
some  arrangement  on  this  subject  is  not  made. 

The  accompanying  papers  were:  Note  of  March,  1851,  from  Sir  H. 
L.  Bulwer  to  Mr.  Webster,  inclosing  copj'  of  letter  of  0th  January, 
1851,  from  Mr.  F.  Hincks,  inspector-general  of  customs,  Canada, 
to  Hon.  R.  McLane,  chairman  of  Committee  on  Commerce, 
House  of  Representatives.  Sir  H.  L.  Bulwer  thinks  thit  the  Canadians 
consider  that  their  application  for  an  interchange  of  agricultural  pro- 
ducts has  failed  because  they  have  generously,  without  stipulations, 
conceded  many  commercial  advantages  which  it  was  in  their  power  to 
bestow;  and  that  their  only  mode  of  securing  desired  privileges  is  to 
revoke  concessions  made.  His  attention  had  been  drawn  to  two  resolu- 
tions which  passed  the  Senate  on  the  subject,  which  he  was  told  would 
have  passed  the  House  if  proposed  to  that  body. 

Proposes  entering  into  a  negotiation. 

Mr.  Hineks,  in  his  letter  to  Mr.  McLane,  recites  the  important  changes 
which  have  occurred  in  the  colonial  ])olicy  of  (ireat  Britain  (ioncerning 
the  regulation  of  commercial  matters,  an«l  the  removal  of  ditferential 
duties  from  American  i)ro<lu(',tions;  that  had  Canada  at  that  time  stipu- 
lated that  in  return  for  her  aduiissiori  of  American  manufacttues,  the 
duties  should  be  removed  from  her  products,  it  would  have  been  the 
interest  of  the  United  States  to  have  agrecMl  to  it.  No  su<;h  proposi- 
tion, however,  was  mad«^ ;  and  the  very  important  concession  scarcely 
attracted  attention  in  the  United  States.  Descnibes  the  important 
rcvsults  in  the  increased  demand  for  American  productions  in  the  prov- 
inces, and  the  har(lshi|)  of  Canadian  raw  products,  sent  to  the  Unit«Ml 
States,  being  burdened  with  high  duties.     Urges  with  much  force  and 


294 


GENERAL    APPENDIX. 


\h:,-2  !'•■ 


intelligence  tbc  considerations  in  fuvor  of  some  arningenient  of  the 
qnestioii. 

Sir  H.  L.  Biilwer  to  Mr.  Webster,  ]\rarch,  1851.  Unless  the  Canadian 
concessions  are  reciprocated,  they  will  retaliate  by  withdrawing  them. 
Offers  the  Saint  Lawrence,  and  canals,  and  the  fisheries  of  Nova  Scotia 
and  Now  Brunswick.  Wants  to  know  frankly  whether  the  United  States 
will  treat  or  recommend  legislation  securing  reciprocity.  Incloses  copy 
of  a  dispatch  of  June  7, 1M51,  from  Lord  Elgin,  governor-general,  toSir 
Henry  L.  liulwer,  in  which  he  expresses  fears  that  i>ublic  opinion  in 
Canada  will  demand  a  vesort  to  closing  the  canals,  to  levying  a  duty  of 
20  per  cent,  on  American  goods,  and  a  return  to  differential  duties  on 
grain  and  breadstuffs,  vegetables,  fruits,  seeds,  animals,  hides,  wool, 
cheese,  tallow,  horns,  salted  and  fresh  meats,  ores,  plaster  of  Paris, 
ashes,  timber,  staves,  and  wood. 

Incloses  extracts  to  the  effect  that  the  British  government  are  pre- 
pared to  open  the  fisheries  if  the  United  States  will  admit  fish  free. 
This  arrangement  not  to  apply  to  Newfoundland. 

The  adjustment  of  the  questions  of  commercial  reciprocity  and  the 
iri,,3. 1). .fisheries  was  the  subject  of  conferences  between  Mr.  Everett 
*■  and  Mr.  Crampton  during  the  brief  service  of  the  former  as 

Secretary  of  State,  as  appears  in  a  i)ostscript  to  an  instruction  of  the 
4th  Decem')er,  1852,  to  Mr.  IngersoU,  United  States  minister  to  London, 
but  no  record  was  kept  of  what  transpired  in  those  conferences.  {The 
instniction  and  P.  S.  ahorc  referred  to  are  2)rintcd  in  Sen.  Ex.  Doc.  Xo.  3, 
sj)ecial  session,  March  8,  1853.) 

President  Fillmore,  in  his  annual  message  of  0th  December,  1852, 
referring  to  the  agitation  of  the  preceding  summer,  on  the  fishery 
question,  thinks  the  moment  favorable  for  the  reconsideratio 
of  the  question  of  the  fisheries,  with  a  view  to  place  them  upon  a  more 
liberal  footing  of  reciprocal  privilege.  He  states  that  there  is  a  willing- 
ness on  the  part  of  Great  Britain  to  meet  ns  in  such  au  arrangemenf, 
which  will  include  the  subject  of  commercial  intercourse  with  the  Brit- 
ish provinces.  Has  thought  that  each  subject  should  be  embraced  in  a 
separate  convention.     {Sen.  Ex.  Doc.  No.  1,  32d  Cong.,  2d  sess.) 

The  Committee  on  Commerce  of  the  House  of  Ke|)resenta- 
fives,  of  which  the  Hon.  D.  L.  Seymour  was  chairman,  had 
under  consideration  sundry  memorials  relative  to  reciprocal  trade,  and 
reported  House  bill  No.  300,  accompanied  by  a  report,  with  appendices, 
covering  the  subjects  of  reciprocal  trade,  the  navigation  of  the  Saint 
Lawrence,  and  the  fisheries.  {Rep.  No.  4,  Ho.  Jieps.,  32d  Cong.,  2d  sess.) 
On  the  2d  February,  1853,  Hon.  D.  L.  Seymour,  chairman  of 
Committee  on  Commerce,  House  of  Representatives,  submitted 
to  Mr.  Everett  the  draught  of  a  bill  referred  to  in  the  foregoing,  with  a 
view  to  being  informed  how  far  pen«ling  negotiations  authorize  the  belief 
that  the  British  government  and  provinces  are  prepared,  on  their  part, 
to  give  effect  to  such  a  bill.  {The  bill  is  printed  in  Appendix  to  Congress- 
ional Globe,  32d  Cong.,  2d  sess.,  p.  198.) 

On  the  4th  February,  1853,  Mr.  Everett  re])lled  that  the  bill  contained 
the  most  important  provisions  of  au  arrangement  between  the  countries ; 
but  that  the  British  minister,  under  his  theu  existing  instructions,  was 
not  authorized  to  conclude  a  treaty,  corresponding  in  all  respects  with 
tlie  bill ;  and  suggested  that,  for  the  sake  of  avoiding  the  evils  of  leav- 
ing the  fishery  question  unadjusted.  Congress  limit  its  action  to  the 
passage  of  a  short  bill,  referring  to  the  fisheries  alone,  providing  that 
whenever  the  President  shall  issue  his  proclamation  that  United  States 
fishermen  are  admitted  to  a  full  participation  in  the  colonial  fisheries, 


ISM,  Fell.  a. 


gi:nj:rai.  appendix. 


2!)5 


K>},  I).' 


HVl,  V,-h.  T. 


colonial  tish  sliall  Itc  admitted  duty  free  into  tlu'  United  States.     Siicli 
I)ill  to  l)e  merely  temimrary.     {Report,  Hook,  rol.  (J,  p.  41)2.) 

Mr.  Everett,  in  an  instruction  of  the  4tU  December,  18r»2,  to 
Mr.  Ingersoll,  wrote  that  some  progress  was  made  by  Mr.  Web- 
ster in  preparations  to  negotiate  with  Mr.  C'rampton  on  the  fisheries  and 
<.'omrnercial  reciprocity.  President  still  desirous  that  negotiation  should 
procee<l ;  and  it  would  be  taken  up  as  soon  as  possible. 

President  Fillmore  sent  to  Congress,  on  the  7th  l*Y'bruary, 
1833,  a  message,  inclosing  report  from  Secretary  of  State,  giv- 
ing tiie  state  of  the  pending  negotiation,  whicli  he,  Mr.  Everett,  said  had 
been  dilligently  pursued;  reported  the  willingness  of  IJritish  govern- 
ment to  arrange  the  lishery  (jnestion.  Kefers  to  desire  for  reciprocal 
free  trade. 

Kefers  also  to  a  resolution  on  the  subject  which  passed  the  House  some 
time  previously,  and  to  the  attention  |)aid  to  the  subject  by  Congress. 
Time  necesvsarily  to  be  consumed  in  the  negotiation  in  consequence  of 
necessity  of  liritisli  minister  referring  to  London  for  instructions,  would 
probably  render  impossible  the  conclusion  of  a  comprehensive  arrange- 
ment that  session.  Meantime  recommends  that  a  bill  admitting  provin- 
cial fish  free,  on  condition  that  United  States  fishermen  are  admitted  to 
full  participation  of  provincial  fisheries,  be  passed  that  session.  (Ho. 
RcpH.,  E.r,  Doc.  40,  32f/  Cong.,  2(1  ness.) 

lOtli  June,  18.">3,  Mr.  JMarcy,  in  a  note  to  Mr.  Crampton, 
acknowledges  receipt  of  a  memorandum  indicating  additional 
subjects  which  IJritish  government  desires  to  iiave  brought  into  pending 
negotiation  relative  to  fisheries  and  reciprocity  trade.  J)eenied  prefer- 
able to  restrict  negotiation  to  the  objects  already  under  discussion, 
though  no  objection  exists  to  including  other  matters  when  obviously 
connected  with  these  objects.  (Rcconi  of  notes  to  lirit.  Leg'n,  vol.  7, p. 
.307.) 

The  memorandum  referred  to  is  not  on  file. 

In  the  summer  of  1853,  Mr.  Marcy  discussed  with  Mr.  Cranii)ton  the 
questions  involved  in  the  propose<l  treaty  ;  but  no  reconl  exists 
in  this  Department  indicating  the  nature  of  those  discussions, 
exce[)t  a  note  of  September  1,  1S.">3,  from  Mr.  Marcy  to  Mr.  Crampton, 
submitting  a  projet  of  the  treaty. 

Says  his  comments  will  be  brief,  because  his  views  have  been  already 
presented  in  conferences. 

Says  the  third  article  is  a  new  one,  inserted  tj  bring  in  northwest 
coast  of  British  possessions. 

l)y  second  article  of  projet  heretofon^  submitted  l)y  British  govern- 
ment, and  by  the  same  article  of  that  submitted  to  Mr.  Crampton,  and 
by  him  referred  to  his  government,  no  restriction  made  to  any  part  of 
United  States  coasts ;  therefore  it  is  but  fair  to  open  Pacific  coast  of 
British  possessions  to  United  States  fishermen.     lias  introduced  in 
article  2  a  clause  excepting  coast  of  Florida,  not  on  account  of  value  of 
fisheries,  but  apprehended  interference  with  slave  population  by  free 
blacks  from  Bahamas,  and  partly  also  from  apprehen«led  interference 
with  rights  of  wreckers.     Has  excepted  also  shell-fish,  to  prevent  misap- 
prehension.  Has  amended  the  expi'ession  in  the  first  article  of  the  British 
draught,  which  prohibited  UnitedStatesfishermenfrom  interfering  "with 
the  operations  of  the  British  tishermen,"  so  that  it  will  read:  Provided, 
that  in  so  doing  they  do  not  interfere  with  the  rights  of  private  property, 
or  with  British  fishermen  in  the  peaceable  use  of  any  part  of  said  coast  in 
their  occupancy,  «&c.    Proposes  modification  of  second  article,  and  to 


•CA 


'•isiJ 


-m 


296 


GENERAL    APPENDIX. 


ui  ' 


specify  the  rivers  ami  eatuariea  which  are  to  be  exchided  from  opera- 
tions of  the  first  and  secMjnd  articles. 

"  In  botli  projefs  before  submitted,  Newfoundland  was  omitted  from 
the  enumeration  of  the  possessions  to  which  treaty  applied."  Has  in- 
cluded it  now. 

The  third  article  of  the  British  draught,  requiring  the  abandonment 
of  our  bounty  system,  is  omitted,  because  we  could  not  abandon  the 
bounty  to  cod-fisheries.*  It  gives  no  advantage  to  our  herring  and 
mackerel  fishermen,  the  classes  affected  by  the  in-shore  clauses  of  the 
treaty,  over  the  British  fishermen  of  the  same  classes.  The  bounty  is 
given  to  certain  deep-sea  fishermen  only,  to  countervail  the  duties 
charged  by  the  United  States  on  salt,  (30  per  cent,  ad  valorem.) 

Keciprocal  clause  as  to  canals  would  be  nugatory,  as  United  States 
own  none. 

Free  registration  of  provincial-built  vessels  not  admissible,  for  obvious 
reasons,  which  were  stated,  pp.  387, 388  of  record. 

Proposed  privilege  of  clearance  of  British  vessels  from  ports  in 
United  States  to  ports  on  Pacific  Coast  would  be  unconstitutional. 

Has  excluded  from  the  free  list  all  manufactures  aiul  books. 

Points  out  the  necessity  for  caring  for  the  interests  of  the  Southern 
and  Southwestern  States  in  making  the  list  of  free  articles.  Has  on 
that  ground  added  rice,  tar,  pitch,  and  turpentine. 

Proposes  to  omit  coal  from  free  list,  in  return  for  which  United  States 
will  omit  leaf  tobacco  and  unrefined  sugar. 

Furs  included  on  free  list  as  a  concession  deserving  an  equivalent. 

The  follow  ing  is  a  copy  of  the  projet : 

I'KO.IET  OF  TREATY. 

The  Gdvernnicnt  of  the  United  States  being  e(|iially  desiroiiH  with  Her  Majesty  the 
Queen  of  Great  Britain  to  avoid  further  misunderstanding  between  their  respective 
citizens  and  subjects  in  regard  to  the  extent  of  the  right  of  fishing  on  the  coasts  of 
British  North  Aiueri<?a,  secured  to  each  by  the  first  artichi  of  a  couvontion  between 
the  lJnite«l  States  and  Her  Britannic  JIajesty's  govern...  'ut,  signed  at  London  on  the 
20th  of  October,  1818;  and  being  also  desirous  to  reguhite  tluj  commerce  and  naviga- 
tion between  their  respective  territories  and  people,  and  more  especially  between  Her 
Majesty's  possessions  in  North  America  and  the  United  States,  in  such  numner  as  to 
render  the  same  reciprocally  beneficial  and  satisfactory,  iuive  I'espeetively  named 
plenipotentiaries,  &c.,  «fcc,,  who  have  agreed  upon  tlie  foUowiog  articles: 

AltTlCLE   I. 

It  is  agreed  by  the  high  contracting  parties  that,  in  addition  to  the  liberty  secured 
to  American  fishernuni  by  the  above-named  convention  of  October  20,  1818,  of  taking, 
curing,  aiul  drying  fish  on  certain  coasts  of  the  British  North  American  Colonies  therein 
defined,  the  inhabitants  of  the  Unite<l  States  shall  have,  in  common  with  the  subjects 
of  Her  Britannic  Miijesty,  the  liberty  to  take  iish  of  every  kind,  except  shell-fisli,  on 
the  sea-coasts  and  shores,  and  in  thy  bays,  harbors,  and  creeks  of  Canada,  New  Bruns- 
wick, Nova  Scotia,  Newfoundland,  Prince  Edward  Island,  and  of  the  several  islands 
thereunto  adjacent,  without  being  restricted  to  any  distance  from  the  shore,  with  per- 
mission to  land  upon  the  coast  and  shores  of  those  colonies  and  the  islan«ls  thereof,  and 
also  upon  the  Mag«lalen  Islands,  for  the  purpose  of  drying  their  nets  and  curing  their 
fish  ;  provided  that  in  so  doing  they  do  not  interfere  with  the  rights  of  private  prop- 
erty, or  with  British  fishermen  in  tlie  peaceable  use  of  any  part  of  said  coast  iu  their 
occupancy  for  the  same  purpose. 

It  is  understood  that  the  above-mentioned  liberty  shall  not  extend  to  the  right  of 
fishing  iu  the  estuarieS  and  rivers  hereinafter  designated  ;  that  is  to  say, 

which  right  is  reserved  exclusively  for  British  fishermen. 

AUTICLE  II. 

It  is  agreed  by  the  high  contracting  parties  that  British  subjects  shall  have,  in  c(ftn- 
mou  with  the  citizens  of  the  United  States,  the  liberty  to  take  fisii  of  every  kind,  ex- 

•  Bounties  abolished  by  reveuije  act  of  28th  July,  l8Gt). 


OENKRAL   APPENDIX. 


297 


*    '& 


cept  NlitOlfihli,  on  tlio  Hpa-coaMts  iiiid  shores  of  tlio  Uiiit<!d  .Statt-H,  (nxdept  tbo  coaHts  of 
the  Statu  of  Florida  and  thu  adjac«>nt  islandH,)  and  un  thu  shoroa  of  theHuveral  ishindti 
boloiigiii);  thereto,  and  in  thu  bays,  liarburH,  and  creeks  of  thu  United  States  andof  tho 
said  isiands,  without  being  restricted  to  any  distance  from  tliu  sliore  ;  with  perniissiou 
to  laud  upon  tliu  coasts  of  the  United  States  and  of  the  ishuids  aforesaid,  (except  the 
coast  of  Florida  and  thu  adjacent  islands,)  for  the  purpose  of  drying  their  nets  and 
curing  their  tish  ;  provided  that  in  so  doing  they  do  not  interfere  with  the  rights  of 
private  property,  or  with  the  Hshennen  of  thu  United  States  iu  the  use  uf  any  part  of 
the  said  coasts,  in  their  occupation  for  thu  same  ])urpose. 

It  is  understood  that  the  above-mentioned  liberty  sinill  not  extend  to  the  right  of 
tishing  in  thu  rivers  and  estuaries  of  thu  United  States  hereinafter  designated  ;  that  is 
to  say, 

which  right  is  reserved  exclusively  for  American  iishermen. 

AUTICLE  III. 

It  is  agreed  that  the  reciprocal  rights  and  privileges  granted  to  the  citizens  and  sub- 
jects of  the  high  contracting  parties  in  thu  two  foregoing  articles  (hrst  and  second) 
shall,  to  thu  full  extent  therein  conceded,  bu  enjoyed  by  them,  respectively,  to  take, 
dry,  and  cure  tish  uf  any  kind,  excui>t  sliell-iish,  on  thu  sea-coasts  and  shores  ;  on  the 
continental  territories  and  possessions  of  either  {tarty  ;  on  the  coasts  of  thu  Pacific 
Ocean,  and  in  \\w  bays,  harbors,  ami  creeks  of  the  said  territories  and  jiossessions ;  and 
on  thu  coasts  and  shores  of  thu  adjacent  islands  belonging  to  either  Irarty,  without  be- 
ing restricted  to  any  <listanco  from  thu  shores. 

AllTICLK  IV. 

It  is  agreed  that  thu  arti(!les  enumerated  in  the  schedule  hereunto  annexed,  being 
the  growth  ami  produce  of  the  aforesaid  British  Colonies  or  of  the  United  States,  shall 
be  admitted  into  each  country,  respectively,  free  of  duty. 

Schiihile. 

Grain,  flour,  and  breadstull's  of  all  kinds. 
Animals  of  all  kinds. 
Fresh,  smoked,  and  salted  mt^ats. 
Cotton-wool,  seeds,  vegetables,  j 
Undried  fruits,  dried  fruits. 
Fish  of  all  kinds. 
Poultry. 

Hides,  furs,^kins,  or  tails,  undressed. 
Stone  and  marble  in  its  crude  or  nuwroiight  state. 
Mutter,  cheese,  tallow. 
Lard,  horns,  manures. 
Ores  of  metals  of  all  kinds. 
Pitch,  tar,  turpentine,  ashes. 

Timber  and  lumber  of  all  kinds:  round,  hewed,  and  sawed;  luauufactjred  in  whole 
or  in  part. 
Firewood. 

Plants,  shrubs,  and  trees. 
Pelts,  wool. 
Fish-oil. 

Rice,  broom-corn,  bark. 
Gypsum,  ground  or  unground. 
Hewn  or  wrought  buhr-stoues. 
Dye-stufts. 
Flax,  hemp,  and  tow,  unmanufactured. 

AUTICLK   V. 

It  is  agreed  that  the  citizens  and  inhabitants  of  thu  United  States  shall  have  the 
right  to  navigate  the  river  Saint  Lawrence  and  the  canals  in  Camida,  used  as  the 
means  of  communicating  with  thu  gn^at  lakes  and  the  Atlantic  Ocean,  with  their  ves- 
sels, boats,  and  crafts  as  fully  and  freely  as  the  subjects  of  Her  Britannic  Majesty, 
subject  only  to  the  same  tolls  and  other  assessments  as  now  are  or  may  hereafter  be 
exacted  of  Her  Majesty's  said  stibjects ;  it  being  understood,  however,  that  the  British 
government  retains  the  right  of  suspending  this  privilege,  on  giving  due  notice  thereof 
to  the  Government  of  the  United  States. 

It  is  further  agreed  that  if  at  any  time  the  British  government  should  exercise  the 
8jud  reserved  right  the  Government  of  thu  United  States  shall  have  the  right  of  sus- 
pending, if  it  think  tit,  the  operations  of  Article  IV,  of  the  present  treaty,  for  so  long  aa 
the  suspension  of  the  free  navigation  of  the  river  Saint  Lawrence  or  the  canals  may 
continue. 


1"^  J| 

■1 


298 


GENKKAI,    ArPKNDlX. 


ril 


,  ■>  •     J 


w 


■i'M 


U' 


I 


15 

P 


I  j) . 


,/ - 


It  \H  also  unit'fd  tliiit  tlin  ciUztijis  ninl  iiiliiilMtuntH  of  tin'  lliiih-il  Statt-n  slmll  liiiva 
tlio  riglit  to  tlio  t'vtw  iiijviniition  of  tho  riv(>r  Saint  .Folin,  in  the  in'oviinc  of  New  llniiiH- 
wick,  m  filly  ami  frcoly  as  tlin  miUJtictM  of  Htsr  Hiitiliiiiio  MaJoKty,  ami  that  id  t-xport 
iliity  or  nny  otlior  tliity  Hliall  ho  Itn'ind  on  liimhi-r  or  tiinhur  of  any  klml  ciit  on  that 
portion  of  the.  American  territory  in  tho  Htato  of  Maino,  ami  wati-rod  hy  tho  ri  vor  Miiint 
.lohn  an<l  itH  trihntarioH,  ami  lloatoil  down  that  rivor  to  tho  Hca,  wIumi  tiio  Munio  is  sliip- 
pcd  to  tho  l.'nitod  Status  from  tho  province  of  Now  Ihnnswlok. 

AnTici.K  VI. 

Tho  prosont  treaty  shall  tako  olToct  whonovor  tin-  laws  roi|iiinil  to  cany  it  into  oper- 
ation shall  liavo  boon  piissod  l»y  tho  Imporial  rarliuinont  of  (Jn^at  Britain  ami  tho  Hrit- 
ish  provincial  assoinhlios  on  tho  oim  hand,  and  liy  f  ho  (^on;;ross  of  tho  llnitod  Htatos 
on  tho  othor  ;  and  shall  ho  himlin^  only  so  lon^  as  said  laws,  whothor  now  oxistiny  or 
hcroaftor  to  ho  onaotod,  shall  remain  ill  forco;  and  whonovor  tho  Imi)orial  I'.irliiiinont 
or  tho  provinoiul  assoinhlios  on  tho  ono  haml,  and  tin*  C<>n;iross  of  tho  I'liitod  Statos 
on  tho  othor,  shall  lojioal  said  laws,  or  oitlior  of  thoiii,  this  treaty  shall  eoaso  to  he 
binding  on  tho  (ttlior  party.  Either  party  may,  howovor,  afti'r  tho  expiration  of  sovon 
years,  torininatu  tho  said  treaty,  by  K'^inK  to'  tho  other  one  year's  iiotieo  of  its  inten- 
tion to  have  tho  same  terminated  ami  become  inoperative. 

i*.4  Inn,  ,      ^"  ^''^  '''^'*  "^  Juiie,  IS.lt,  the  treaty  was  sio;iKMl  by  Mr.  Marcy 
*  "  ""'  '  siiid  Lord  Eltfin,  uiul  on  tho  LMHh  of  the  same  inontii  siibiuittell 

to  the  Senate: 
The  foHowiiig  is  a  copy  of  the  message  ami  treaty  as  subnntted. 

To  the  Senate  of  the  United  Staten  : 

I  transmit  to  the  Senatt!  for  its  coiisidoration,  with  a  view  to  ratili(!ation,  a  treaty 
extending  the  rijjht  of  lishinj»,  and  roynlatiiifj  the  eommoreo  and  iiavi;jatioii  botweon 
Her  liritannic  Majesty's  posessions  in  North  America  and  tho  Unittid  .States,  concluded 
in  this  citv  on  the  r)th  instant,  between  the  United  States  and  Ui'r  IJiitannio  Miijosty. 

FRANKMN  PIEKUE. 

WAsiiiNtiTON,  JiDie  20,  1854. 

The  Government  of  the  United  States  being  equally  desirous  with  Her  Majesty  the 
Qneen  of  Gr(!at  liritain  to  avoid  further  misnnderstandiiii^  between  their  respective 
eitizens  and  snbjects,  in  regard  to  tho  extent  of  the  right  of  fishing  on  the  coasts  of 
British  North  America,  secured  to  each  by  Article  I  of  a  convention  between  the  United 
States  and  Great  iiritain,  signed  at  London,  on  the  5jOth  day  of  October,  1818 ;  and 
being  also  desirous  to  regulate  tho  commerce  and  navigation  between  their  respective 
territories  and  j)eople,  and  more,  especially  between  Her  Majesty's  possessions  in  North 
America  and  tho  United  States,  in  such  manner  as  to  render  the  same  reciprocally 
beneficial  and  satisfactory,  have,  respectively,  named  plenipotentiaries  to  confer  and 
agree  thereupon — that  is  to  say,  the  President  of  the  United  Stat«^s  of  Ainori(;a,  William 
L.  Marcy,  Secretary  of  State  of  the  United  States,  and  Her  Majesty  the  Queen  of  tho 
United  Kingdom  of  Groat  Britain  and  Ireland,  .Tamos,  Earl  of  Elgin  and  Kincardine, 
Lord  Bruce  and  Elgin,  a  peer  of  the  United  Kingdom,  knight  of  the  most  ancient  and 
most  noble  Order  of  the  Thistle,  and  governor-general  in  and  over  all  Her  Britannic 
Majesty's  provinc(!s  on  the  continent  of  North  America,  and  in  and  over  tho  island  of 
Prince  P^dward  ;  who,  after  having  communicated  to  each  other  their  respective  full 
powers,  found  in  good  and  due  form,  have  agreed  upon  the  following  articles : 

Airrici.E  I. 

It  is  agreed  by  the  high  contracting  piirties  that  in  addition  to  the  liberty  secured  to 
the  United  States  fishermen  by  the  above-mentioned  convention  of  October  20, 1818,  of 
taking, curing,  and  drying  fisii  on  certain  coasts  of  the  British  North  American  Colo- 
nies, therein  «lefined,  the  inhabitants  of  the  United  States  shall  have,  in  common  with 
tho  subjects  of  Her  Britannic  Majesty,  the  liberty  to  tako  flsh  of  every  kind,  (»xcept 
nhell-fish,  on  the  sea  coasts  and  shores,  and  in  the  bays,  harbors,  and  creeks  of  Canada, 
New  Brunswick,  Nova  Scotia,  Prince  Edward  Island,  and  of  the  several  islands  there- 
unto adjacent,  without  being  restricted  to  any  distance  from  the  shore ;  with  permis- 
sion to  land  upon  tiie  coasts  and  shores  of  those  colonies  and  the  islands  thereof,  and 
also  upon  the  Magdalen  Islands,  for  the  purpose  of  drying  their  nets  and  curing  their 
fish;  provided  that,  in  so  doing,  they  do  not  interfere  with  the  rights  of  private  prop- 
erty or  with  British  fishermen  in  tho  peaceable  use  of  any  part  of  the  said  coast  in 
,  their  occupancy  for  the  same  purpose. 

It  is  understood  that  the  above-mentioned  liberty  applies  solely  to  the  sea  fisheries, 
and  that  the  salmon  and  shad  fisheries,  and  all  fisheries  in  rivers  and  the  mouths  of 
rivers,  are  hereby  reserved,  exclusively,  for  British  fisherman. 

And  it  is  further  agreed  that,  in  order  to  prevent  or  settle  iiuy  disputes  as  to  the 
places  to  which  the  reservation  of  exclusive  right  to  British  fishermen,  contained  in 


(il'.NKKAl-    AriM:M»IX. 


Ofui 

^  (  '  I  r 


ii'W  Hi'llllH- 

lilt  <'X|)nrt 
If  on  tliiit 

ivcr  JSiiiiit 
III'  is  Hliip- 


iiitti  o|>i'i'- 
<l  tli(>  Mrit- 
U'4  .Stiiten 
'xistiii;;  or 
'.ii'liitinitnt 

wasn  to  1)1^ 

II   of  MUVCIl 

it»  inh^n- 

r.  Marcy 
il>initt('<l 


n'i- 


;('(!. 


1,  a  treaty 

1    l)«tVV«llll 

coiiuliidcd 
I  MajuHty. 
lEKCE. 


ajt'sty  the 
lospootivo 
o  coantH  of 
Axfi  Unitert 
1818;  and 
respoctivti 
s  ill  North 
ciprocjilly 
!oiifi<r  and 
I,  William 
nm  of  tlio 
incardine, 
loiuiit  and 
Uri  tannic 
itslaiid  of 
ctive  full 
I : 


tficnred  to 
I),  1818,  of 
can  Oolo- 
luon  with 
id,  except 
f  Canada, 
ids  thore- 
h  jiermis- 
M'eof,  and 
fiiig  their 
ate  prop- 
I  coast  in 

flshorics, 
iiDiiths  of 

as  to  the 
tained  iu 


tliirt  artirlr,  and  tint  nf  li->hi<rinjiii  of  tin*  I'liilrd  SlatcH,  I'ont.aiiii'd  in  ilii>  iicnI  .siiccned- 
in^  arliclc,  apply,  i  icji  of  tin-  iil;:;li  contracliiiK  parties,  on  the  application  of  eillt<>r  to 
llie  other,  shall,  within  six  niunths  thereafter,  appoint  a  eoniniissioner.  Tint  said  coin- 
inissioners,  hefoie  proceeding  to  any  hiisiness.  Hhall  make  and  miIisii  ilte  a  soliMiiii  doida- 
lation  that  they  will  impartially  and  carefnlly  examine  and  dreide,  to  the  hest  of  their 
indn"""it.  imd  accordiii^ito  Jnsfiee  and  eipiity,  witlmnt  fear,  favor, or  atlection  to  their 
iiwii  country,  upon  all  siieh  places  as  are  intended  to  lie  reserved  and  e\eliidt<d  from 
the  common  liberty  of  tishiitif  nnder  this  and  the  next  sneceediiij;  article,  and  such  «U'c- 
laration  shall  he  entered  on  the  record  of  their  proceedings. 

The  commissioner  shall  name  some  third  in'i'sun  to  act  a>*  an  arbitrator  or  umpire  in 
any  case  or  (-ase.-  on  wliicdi  they  may  themselves  diU'er  in  o|iinioii.  If  they  should  not 
lie  able  to  a;;i'ce  upon  the  name  of  snch  third  person,  they  shall  etch  name  a  person, 
and  it  shall  be  determined  by  lot  which  of  the  two  perso  is  so  named  »hall  be  the  arbi- 
trator or  umpire  in  cases  of  dilVerence  or  disaKieement  between  the  ctmiinissioiieis. 
'i'ln>  jtersoii  so  to  be  chosen  to  he  arbitrator  or  umpire  shall,  before  proceedin>;  to  act.  as 
such  in  any  case,  make  and  snbscrilte  a  solemn  declaration  in  a  form  si  nilar  to  that 
which  shall  already  have  been  made  and  subscribed  by  the  commissi(Uicrs,  which  shall 
he  entered  on  the  record  id'  their  i>r(u;eediii;fs.  In  the  event  of  the  death,  abseiicis  or 
incapacity  of  either  <d'  the  commisdoners,  or  ol'  the  arbitrator  or  umpire,  or  of  their 
or  his  omitf  in;;,  decliniiiij,  or  (M-a-iiiij;  to  act  as  smh  coiumisiioner,  arhitr.itor,  or  umpire, 
another  and  <lilferent  person  shall  be  a|)poinli'd  or  named  as  aforesaid  to  act  as  siudi 
cDiiimissioner,  arbitrator,  or  umpire,  in  tiie  jdaci^  and  stead  of  the  person  so  ori;;inally 
appointed  or  named  as  aforesaid,  and  sli.ill  make  ami  subscribe  such  declaration  as 
aioroHaid. 

.Siudi  commissioners  shall  proceed  to  examine  ihe  (M)asts  of  the  North  American  prov- 
iu(!es  and  of  the  United  States,  embraced  within  the  pro\  isions  ol  the  lirst  and  socinid 
artiidesof  this  treaty,  and  shall  desi;;nato  the  places  reserved  by  the  said  articles  from 
the  common  right  of  jishiiig  tliercin. 

The  decision  of  the  commissioners,  and  of  the  arbitrator  or  I'lnpiri',  shall  ho  given 
in  writing  in  each  ease,  and  shall  be  signed  by  tlnMii  r(!S|»ectivtd> , 

The  high  contracting  parties  hereby  solemnly  engage  to  consider  tln^  decision  of  tli« 
commissioners  conjointly,  or  of  the  arbitrator  or  niiipirc,  as  the  case  maybe,  iiH  ahno- 
Intely  linal  and  conclusive  iu  each  case  decided  upon  by  them  or  him  respectively. 

Artici.k  II, 

It  is  agreed  by  the  liigh  contracting  parties  that  British  subjects  shall  have,  in  coin- 
nion  with  the  citizens  of  the  United  States,  the  liberty  to  take  tisli  of  every  kind,  except 
slitdl-ti-  .on  the  (lasteni  sea-coasts  and  shores  of  the  United  .States,  north  of  the  Ihltli 
parallel  of  north  latitude,  :ind  on  the  shoi-es  of  the  sc^viumI  islainls  theriMinlo  adjacent, 
and  in  the  bays,  harbors,  and  creeks  <d'  the  said  st^a-coasts  and  shores  of  the  Unitcil 
St.ites,  ami  of  the  said  islands,  without  bidiig  restricted  to  any  distance  from  the  shore, 
with  periiiissiou  to  laud  upon  the  said  coasts  of  the  Unitetl  States  and  of  the  islands 
iiforesaid,  for  the  purpose  of  drying  their  nets  and  curing  tlieir  tish  :  proviih'd,  that  iu 
so  doing,  they  do  not  ii.terfiue  with  tln^  rights  of  private  property,  or  with  the  tisher- 
nien  of  the  United  States  in  the  peaceable  use  of  any  part  of  the  said  coasts  in  their 
occupancy  for  the  same  purpose. 

It  is  understood  that  the  above-meutioiied  lilierty  applies  solely  to  the  soa-lishcry, 
and  that  sahniui  and  shad  tisheries,  and  all  tisherie.s  in  rivers  and  months  of  rivers, aro 
liei'by  reserved  exclusively  for  Hshermeii  of  the  United  States. 

AitricLK  III. 

ft  is  .agreed  that  the  articles  eiiui  icrated  in  the  schedule  heienntn  annexed,  lacing 
tliiA  growth  and  produce  of  the  afcuesaid  Hritisli  colonies,  or  of  the  United  Statics,  ghail 
he  admitted  into  each  country  respectively  free  of  duty. 

Schedule. 

Grain,  flonr,  and  hreadstuti's  of  all  kinds. 

Animals  of  all  kinds. 

Fresh,  smoked,  and  salted  meats.  • 

Cotton-wool,  seeds,  and  vegtitables. 

Undried  fruits,  dried  fruits. 

Fish  of  all  kinds. 

I'roducts  offish  and  of  other  creatures  living  in  the  water. 

Poultry,  eggs, 

Hides,  furs,  skins,  or  tails  iii  'rcssed. 

Stone  or  marble,  iu  its  crude    r  uuwrought  state. 

Slate. 

IJutter,  cheese,  tallow. 

Lard,  borus,  luanures. 


'I 


"jha 


300 


GENERAL   APPENDIX. 


•H. 


Ores  of  metals  of  all  kinds. 
Coal. 

Pitch,  tar,  turpentine,  ashes. 

Timber  and  lumber  of  all  kinds,  round,  heweil,  and  sawed,  uniiianiifactured  in  \\ 
or  in  part. 
Firewood. 

Plants,  Hhrnbs,  and  trees. 
Pelts,  wool. 
Fish-oil. 

Rice,broon»-corn,  and  bark. 
Gypsum,  ground  or  unground. 

H»^wn,or  wrought,  or  uuwrouglit  bnhi  or  grindstones. 
Dye-stutls. 

Flax,  hemp,  and  tow,  unmannfiictured. 
Unmanufactiued  tobacco. 
Ra<;s. 


hole 


1^.'. 


Aktici.k  IV. 

It  is  agreed  that  the  citizens  and  inhabitants  of  the  United  States  shall  have  the 
right  to  navigate  the  St.  Lawrence,  and  the  canals  in  Cana'la,  used  as  the  means  ot 
communicating  between  the  great  lakes  and  the  Atlantic  Ocean,  with  their  vessels, 
boats,  and  crafts,  as  fully  and  freely  as  the  subjects  of  Her  Britannic  Majesty,  subject 
only  to  the  same  tolls  and  other  assessments  as  now  are,  or  may  hereafter  be,  exacted 
of  Her  Majesty's  said  subjects  ;  it  being  understood,  however,  that  the  British  govern- 
ment retains  the  right  of  suspending  this  privilege  on  giving  duo  notice  thereof  to  the 
Government  of  the  United  States. 

It  is  further  agreed  that  if  at  any  time  the  British  government  should  exercise  the 
said  reserved  right,  the  Goveinment  of  the  United  States  shall  have  the  right  of  sus- 
pending, if  it  think  lit,  the  operation  of  Article  III  of  the  present  treaty,  in  so  far  as 
the  province  of  Canada  is  atfected  thereby,  for  so  long  as  the  suspension  of  the  five 
navigation  of  the  river  St.  Lawrence  or  the  canals  may  continue. 

It  is  further  agreed  that  British  subjects  shall  have  the  right  freely  to  navigate  Lake 
Michigan,  with  their  vessels,  boats,  and  crafts,  so  long  as  the  privilege  of  nuvigatinj; 
the  river  St.  Lawrence,  secured  to  American  citizens  by  the  above  clause  .^f  the  present 
article,  shall  continue;  and  the  Government  of  the  United  States  further  engages  to 
urge  upon  the  State  governments  to  secure  to  the  subjects  of  Her  Britannic  Majesty 
the  use  of  the  several  State  canals  on  terms  of  e«iuality  with  the  inhabitants  of  the 
United  States. 

And  it  is  further  agreed  that  no  export  duty,  or  other  duty,  slnill  be  levied  on  lumber 
or  timber  of  any  kind,  cut  on  that  portion  of  the  Anu^rican  territory  in  the  State  of 
Maine  watered  by  the  river  Saint  John  and  its  tributaries,  and  Hoated  down  that  river 
to  the  sea,  when  the  same  is  shipped  to  the  United  States  from  tho  province  of  New 
Brunswick. 

Artici.f.  V. 

The  present  treaty  shall  take  ettect  as  soon  as  the  laws  recpiired  to  carry  it  into  op- 
eration shall  have  been  passed  by  the  Imperial  Parliament  of  Great  Britain,  and  by  tlie 
provincial  parliaments  of  those  of  the  British  North  American  colonies  which  are 
affected  by  this  treaty  on  the  one  hand,  and  by  the  Congress  of  the  United  States  on 
the  other.  Such  assent  having  been  given,  the  treaty  shall  remain  in  force  for  ten 
years  from  the  date  at  which  it  may  come  into  operation,  and  further,  until  the  expira- 
tion of  tw»'lve  months  after  either  of  the  high  contracting  parties  shall  give  notice  to 
tho  otluu"  of  its  wish  to  termiimte  the  same  ;  each  of  the  high  contracting  parties  being 
at  liberty  to  give  such  notice  to  the  other  at  the  end  of  tho  said  term  of  ten  years,  oi 
at  any  time  afterward. 

It  is  clearly  understood,  however,  that  this  stipulation  is  not  intended  to  afltect  the 
reservation  made  by  Article  IV  of  the  present  treaty  with  regard  to  the  right  of  tem- 
porarily suspending  the  operation  of  Articles  III  and  IV  thereof. 

Arth  I,E  VI. 

And  it  is  hereby  further  agreed  that  the  provisions  and  stipulations  of  the  foregoing; 
articles  shall  extend  to  the  Island  of  Newfoundland,  so  far  as  they  are  applicable  to 
that  colony.  But  if  the  Imperial  Parliament,  the  provincial  parliament  of  Newfound- 
land, or  tilt'  Congress  of  the  United  States  shall  not  embrace  in  their  laws  enacted  for 
carrying  this  treaty  into  ett'ect  the  colony  of  Newfoundland,  then  this  article  shall  he 
of  no  effect,  but  Mie  omission  to  make  provision  by  law  to  give  it  efft>et,  by  either  of 
the  legislative  bodies  aforesaid,  shall  not  in  any  way  impair  the  remaining  articles  iif 
thiB  treaty. 


nrctl  ill  whole 


shall  have  the 
the  means  ot 
their  vessels, 
jesty,  siihjfct 
;r  be,  exacted 
ritish  {toverii- 
theieof  to  the 

[1  exercise  the 
1  rif^ht  of  sus- 
y,  ill  so  far  as 
uu  of  the  free 

avigatc  Lake 
>f  iiavifjatiiig 
f  the  present 
in  '^tifrafjes  to 
uinic  Majesty 
litaiits  of  the 

ed  on  lumber 
1  the  State  of 
wii  that  river 
?^iiice  of  New 


ry  it  into  op- 
11,  and  by  the 
es  which  are 
ed  States  on 
force  for  ten 
:il  the  expiru- 
;ive  notice  to 
parties  bein^ 
ten  years,  or 

to  aifect  the 
rij;ht  of  teui- 


the  fore<j;oini; 
a]i))li cable  to 
»f  New  foil  11(1- 
s  enacted  for 
icie  siiall  he 
,  by  either  of 
ijl  articles  of 


GENERAL   APPENDIX. 


AUTICLK   Vn. 


301 


The  present  treaty  shall  be  duly  ratified,  and  the  mutual  exchange  of  ratifications 
shall  take  place  iu  Washington,  within  six  months  from  the  date  hereof,  or  earlier  if 
possible. 

In  faith  whereof  we,  the  respective  plenipotentiaries,  have  signed  this  treaty  and 
have  hereunto  affixed  our  seals. 

Done,  in  triplicate,  at  Washington,  the  fifth  day  of  June,  anno  Domini  one  thousand 
right  hundred  and  fiftv-four. 

W.  L.  MARCY.  [r..  s.] 

ELGIN  &  KINCARDINE,    [i..  s  ] 

Tlie  SiMiati',  l>y  a  resolution  of  the  2(1  Aujiust,  1854,  sanctione<l  tlip 
latiflcatiou  of  tlie  treaty  as  al»ove  presented  witliout  aiuiMul-  a.,..-,  km. 
nieut. 

It  was  ratified  Aii<4iist  9, 185-1,  and  exchanged  September  !>.  ,V';,T,.;,V;I.r » 
18ol. 

On  the  17th  Mareh,  18G5,  Mr.  Adams,  the  minister  of  the  United 
States  at  London,  under  instructions  from  the  Secretary  ot 
State,  jfave  otticial  notice  that  the  tisaty  would  terminate  at 
the  exi»iration  of  one  year  from  that  date. 

On  the  17th  of  March,  18G(),  tlui  President  issue<l  a  proclamation  de- 
ciarino;  the  treaty  terminated.  ismi.M.r  n. 

Sir  Edward  Thornton,  on  the  12ti\  of  .Inly,  18G1),  handed  to  .Mr.  Fish 
a  nuMuoraudum  of  basis  of  negotiation,  proposing  :  im.,>.  .r-.iy  i* 

1.  Kenewal  of  the  fishery  privileges  as  under  reciprocity  treaty  of 
1854,  with  such  extensions  as  altered  circumstances  may  recpiire,  on  con- 
dition that  arrangement  for  trade  satisfactory  to  Canada  is  made. 

2.  Subject  to  same  condition,  same  rights  of  navigation  of  Saint  Law- 
rence as  under  reciprocity  treaty,  and  corresponding  rights  on  other 
inland  waters  of  the  British  possessions  in  Xorth  America,  exteiuled 
to  citizens  of  the  United  States,  on  simil  r  rights  being  extended  to 
Canada  as  to  the  United  States  waters,  Canada  to  enter  into  arrange- 
ments with  a  view  of  improving  access  to  the  ocean  by  enlargement  and 
deepening  of  the  canals  on  receiving  assurance  of  the  permanency  of 
the  commercial  intercourse  proposed. 

3.  Subject  10  same  condition,  Canada  will  consider  the  questions  of 
mutual  opening  of  coasting  trade  ; 

Liberal  und  reciprocal  arrangement  of  patent  and  copyright  laws; 
Providing  for  extradition  of  persons  committing  any  crimes  but  those 
of  a  political  natnve. 

4.  Transit  trade  to  be  iiee  and  unrestricted,  with  no  other  charges 
than  nee  ssary  to  protect  revenue.  This  subject  to  be  regulated  by 
treaty  o:  legislation. 

5.  Exchange,  during  such  period  as  may  be  agre  h1  upon,  of  the  pro- 
ductions of  the  sea,  f(»rest,  mines,  and  agriculture,  and  animals  and 
their  products,  on  recipr(;cal  terms  as  nearly  free  as  possible.  Schedule 
of  treaty  o.''  1854  basis  of  new  arrangement,  but  may  be  added  to  by 
both  and  end>race  certain  manufactures  ;  duty,  if  any,  to  have  for  basis 
internal-revenue  tax  of  the  United  States. 

(i.  Canada  to  adjust  excise  duty  on  spirits,  beer,  tobacco,  and  othi^r 
cognate  articles,  on  best  revenue  standard  to  be  agreed  on  by  both  par 
ties;  Canatla  to  do  all  she  can  to  prevent  illicit  trade  between  the  United 
States  and  Canada.  {  Volume  of  noieti  from  Britinh  Legation,  Jnli/ 12,  18G'.>.) 

Seventeenth  March,  1870,  Sir  E.  Thornton  wrote  to  Mr.  Fish 
a  private  and  confidential  letter.    He  had  a  reply  to  inipiiries 
made  at  Mr.  Fish's  suggestion,  whether  the  Canadian  government  wonhl 
grant  the  free  navigation  of  the  VVelland  Canal  and  Saint  l^awrence. 


iWl 


u 


% 


ft'- 


I* 


mi-: 


,!  1 


302 


GENERAL    API'ENDIX. 


If       (* 


u-  ♦ 


aDd  put  tlie  «;aiial  into  a  proper  state  for  navigation,  in  return  to-  a 
considerable  reduction  in  the  iuiport  duties  in  tliis  country  on  lumber, 
salt,  tish,  and  coal,  or  a  jtossible  abolition  of  all  duty  on  the  tirst  three 
articles.  In  reply,  Canadian  government  regrets  absence  from  th«^ 
proposal  of  products  of  the  most  populous  sections  of  Dominion.  Of 
the  four  articles  immed,  without  knowing  how  much  the  duty  on  coal 
could  be  diminished,  they  consider  that  the  free  importation  of  fish 
would  be  tlie  only  satisfactory  part  of  the  proposal. 

Incloses  two  schedules  which  JVlr.  Fish  suggested  would  be  necessary  ; 
one  a  free  list,  the  other  of  articles  which  might  have  to  be  subject  to 
certain  rates  of  duty. 

Schedule  No.  1  is  a  free  list;  No.  2  a  list  of  articles  to  pay  a  certain 
import  duty  in  both  countries.  If  they  are  adopted  by  United  States, 
or  propose  not  unacceptable  raoditications,  iiee  navigation  of  the  Saint 
Lawrence  and  the  use  of  the  canals  will  be  granted;  and  he  is  author 
ized  to  declare  that  it  is  the  policy  of  Canada  to  maintain  tlie  greatetii 
efliciency  in  canals.     Asks  early  answer. 

/Schedule  1. 
Hides  and  pelts. 

Furs,  skins,  and  tails,  (undressed.) 
Fish,  fresh. 
Eggs. 

Timber  and  lumber,  round,  hewed,  sawed,  unmanufactured  in  whole 
or  in  part. 
Pitch,  tar,  turpentine,  and  ashes. 
Firewood. 

IMants,  bulbs,  trees,  and  shrubs. 
Salt. 

Broom-corn. 
Bristles. 

Ores  and  minerals  of  all  kinds. 
Cotton  and  wool. 
Stone  and  marble,  (unwrought.) 
Slate. 

Gypsum,  unground. 
Flax,  hemp,  and  tow,  (uiKhessed.) 
Unmanufactured  tobacco, 
llags. 

Uuhr  or  grind  stones. 
I>ye  stutVs. 
Horns. 
Manures. 
Fish-oil. 

Clays,  earths,  and  gravel. 
Emery. 

Plaster  of  I'aiis,  (not  ground  or  calcined.) 
Resin. 
Sand. 

Tjinners'  bark,  and  extracts  thereof. 
Wool. 

iichedule  2. 

Animals  of  all  kinds,  ad  valorem,T)  per  cent. 

Poultry,  ad  valorem,  5  per  cent. 

Fish,  viz;  Mackerel,  per  barrel,  '^l ;  salmon,  per  barrel,  *! ;  herrings, 


iturn  to"  a 
n  lumber, 
tirst  three 
from  tilt* 
in  ion.  Of 
ity  on  coal 
on  of  &»h 

leeessary : 
subject  to 

f  ii  certain 
ed  States, 
f  tbe  Sainc 
is  author 
le  greatest 


.1  in  whoU- 


GENERAL    APPENDIX. 


303 


and  all  other  tish  in  barrels,  oO  cents ;  fish  not  in  barrels,  and  not  other- 
wise described,  ad  valorem,  5  per  cent. 

Meats,  fresh,  salted,  and  smoked,  per  pound,  1  cent. 

Butter,  per  pound,  2  cents. 

Cheese,  i)er  jwund,  li  couts. 

Lard,  per  pound,  1  cent. 

Tallow,  per  i)ound,  1  cent. 

Grease,  and  {iiease  scraps,  ad  valorem,  5  per  cent. 

Fruits,  green,  drioil,  and  undried,  ad  valorem,  5  per  cent. 

Seeds,  not  including  cereals,  ad  valorem,  5  per  cent. 

May  and  straw,  ad  valorem,  ~>  per  cent. 

IJran,  ad  valorem,  .">  per  cent. 

Vegetables,  including  potatoes  and  other  roots,  ad  valon  ni,  ~>  ]wr 
cent. 

Hops,  per  pound,  5  cents. 

Wheat,  per  bushel,  4  cents. 

Barley  ami  rye,  i)er  bushel,  .J  cents. 

Oats,  buckwheat,  and  Indian  corn,  per  bushel,  '2  cents. 

Pease  and  beans,  per  bushel,  li  cents. 

Flour  of  wheat  or  rye,  per  barrel,  2o  cents. 

Indian  and  buckwheat  meal,  and  oatmeal,  per  barrel,  15  cents. 

Coal,  per  ton,  50  cents. 

List  of  appendices,  icith  description  of  contents. 

No.  1.  Statistics  of  trade  with  provinces  for  certain,  years,  in  articles 
on  free  list  of  reciprocity  treaty. 

No.  2.  Keport  of  Committee  on  Commerce.  House  of  J{e])re- 
sentatives,  on  tho  operation  of  the  treaty  of  1S51.    I'ointing 
out  defects  and  suggesting  remedies.     {Report  A'o.  22,  H.  /i.,  'Sith  Contf., 
'Id  sess.) 

No.  3.  llepoit  of  Secretary  of  Treasury  to  House  of  Ilepresentative^, 
in  answer  to  a  resolution,  ])resenting  statistics  of  trade  w  ith  Canada, 
&c.,  illustrative  of  the  working  of  the  treaty,  the  Canadian  tariffs  of 
1810  and  1802,  and  the  rates  of  toll  in  1804  on  the  Canadian  canals. 
{Kv.  Doc.  Xo.  ;}2,  IL  Zi'.,  'SSth  Cong.,  1st  sess.) 

No.  4.  A  report  of  Hon.  Israel  T.  Hatch  upon  commercial  relations 
with  the  British  provinces  and  the  comparative  importance  of  American 
and  Canadian  commen*ial  channels  of  transportation  of  i)roperty  from 
the  west  to  the  sea-board.     {Rv.  Doc.  No.  78,  II.  It,  IVM/i  Cong.,  2d  sess.) 

No.  5.  Keports  by  George  W.  lirega,  esq.,  ui)on  trade  with  the  prov- 
inces of  British  North  America,  the  free  navigation  of  the  Saint  Law- 
rence and  the  Gulf  lisheries.  {Ex.  Docs.  Nos.  240  and  2J>5,  IL  R.,  -iOth 
(Jong.,  2d.  sess.) 

No.  0.  Eeport  of  Hon.  Israel  T.  Hatch  upon  the  commercial  relations 
of  the  United  States  with  the  Dominion  of  Canada,  to  etuible  Secretary 
of  Treasury  to  further  answer  House  resolution  Dth  July,  ]8()(i,  calling 
for  a  statement  of  the  trade  and  commerce  with  the  jnovinces,  and  a 
statement  of  the  revenue  derived  therefrom  since  the  termination  of 
the  treaty,  and  of  all  changes  in  the  Canadian  tarift's  since  that  date, 
also  of  comparative  importance  of  American  and  Canadian  channels  of 
transportation.     {TJ.r.  Doc.  Xo.  3(>,  IL  R,,  AOth  Cong..  3d  sess.) 


1HU2,  Kill. 


•.  m 


•fl 


;  herrings. 


304 


GENERAL   APPENDIX. 


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GENERAL   APPENDIX. 


COMPAKATIVE  STATEMENT. 


305 


TahU  showing  the  values  of  total  exports  from,  and  of  total  exports  to,  Canada  and  other 
British  North  American  possessions  for  each  of  the  twelve  fiscal  years,  (ended  June  'iO,) 
from  1858  to  1869,  inclusive. 


Oonntries. 

1858. 

1859. 

18C0. 

1S61. 

1862. 

1863. 

Importa 

Domestic  exports 

$15,800,519 

19,  638.  9-.9 

4, 012,  768 

*19,  727,  .551 

21,  7(i9,  627 

0, 384,  547 

.J23,  8.U,  381 

18,  fi07,  429 

4,  038,  899 

823,  002,  9a3 

18,88.3,715 

3,  861,  898 

?19,  299,  995 

18,0.52,012 

2,  427, 103 

324, 031, 264 

28,029,110 

2,051,920 

Foreign  exports 

CountriBS. 

18S4. 

1805. 

1860. 

1867. 

1868. 

1869. 

Imports 

Domestic  exports 

Foreign  exports 

m,  922,  015 

2J,  567,  221 

2,  419,  926 

?3^,  820,  969 

30,  455,  989 

2,  097,  858 

m.  714,  383 

26,  874,  888 

2,  481,  684 

m,  604, 178 

20,  548,  704 

3,  774,  405 

830,  302,  231 

23,600,717 

2,  061,  555 

$32,090,314 

20,  8H  1,786 

3,  305,  446 

20  H 


ir 


V-XORTH\Vi:ST   WATER  BOUNDARY 

SAN  JUAN. 


ANr    JIE   ISLAND  OF 


1 


SYNOPSIS. 

By  the  Ist  jirticle  of  tlio  treaty  between  the  United  States  and  Great 
Britain  of  the  loth  of  June,  ISIG,  it  was  stipnhited  that  the  line  of 
boundary  between  the  territ<nies  of  the  parties  on  the  forty-ninth  i)ar- 
allel  .should  t<top  in  the  nu<hlle  of  the  channel  which  separates  the  con- 
tinent from  Vancouver'.s  Island,  and  should  proceed  thence  southerly 
throujjfh  the  middle  of  that  channel  and  of  Fuca's  Straits,  to  the  Pacitic 
Ocean. 

The  point  in  dispute  between  the  two  governments  is,  as  to  which 
channel  was  meant  by  the  words  referred  to.  On  the  part  of  the 
United  States  it  is  contended  that  no  other  than  the  Ilaro,  and  on  the 
l)art  of  Great  Britain  that  no  other  than  the  Itosario  Channel  could 
liave  been  in  contemplation. 

The'Uuited  States  also  contend  that  the  history  of  the  negotiation 
.shows  tiiat,  in  abandoning  a  claim  to  have  the  boundary  of  the  forty-ninth 
])arallel  extended  to  the  Pacific,  and  thereby  relinquishing  the  whole  of 
Vancouver's  Island  to  Great  Britain,  they  were  actuated  by  an  expecta- 
tion that  all  other  islands  soxith  of  that  parallel  and  east  of  the  Ilaro 
Channel  would  fall  to  them.  The  United  States  also  contend  that  the 
parties  could  not  have  supposed  that  any  other  channel  was  meant  than 
the  wid(?st,  the  deepest,  and  the  shortest  between  the  Straits  of  Fuca 
and  the  mouth  of  Fraser  River,  which  conditions  are  only  fultilleu  by 
the  Ilaro  Channel ;  that  the  luivigation  to  and  from  Fuca's  Straits  by 
the  liosario  Channel  is  comparatively  circuitous,  and  that  if  that  chan- 
nel were  to  be  the  line,  it  wouhl  throw  into  the  po.S8ession  of  Great 
Britain  all  the  islands  below  the  forty-ninth  i)arallel  and  east  of  Van- 
couver. 

The  objects  and  intentions  of  the  parties  in  agreeing  to  the  first  arti- 
cle of  the  treaty  of  the  15th  June,  181G,  seem  to  be  well  illustrated  by 
the  following  antecedents  to  that  instrument: 

By  the  third  article  of  the  treaty  between  the  United  States  and 
Great  Britain  of  the  20tli  October,  1818,  the  parties  agreed  to  a  joint 
occupation  of  the  territory  which  they  might  respectively  claim  on  the 
northwest  coast  of  America  west  of  the  Itocky  Mountains. 

By  their  treaty  with  Spain  of  the  22d  of  February,  1819,  the  United 
States  acquired  any  title  which  the  latter  may  have  had  in  the  same 
territory  north  of  the  forty-second  parallel  of  latitude. 

By  their  treaty  with  Great  Britain  of  the  0th  of  August,  1827,  the 
joint  occupation  of  the  territory  referred  to  was  indefinitely  extended, 
upon  the  condition  that  if,  after  the  20th  of  October,  1828,  either  party 
^should  give  twelve  month.s'  notice  to  the  other,  the  convention  would  be 
abrogated  at  the  expiration  of  the  said  term  of  notice. 

The  forty-second  parallel  of  latitude  was  also  made  the  southern 
boundary  of  the  United  States  west  of  the  Rocky  Mountains,  by  their 
treaty  with  Mexico  of  April,  1831. 

In  a  letter  to  JMr.  Upshur,  Secretary  of  State,  of  the  14th  of  November, 


*^ 


GENERAL   APPENDIX. 


30V 


.AND  OF 


and  Groat 
he  line  of 
ninth  i)ai- 
^s  the  con- 
s  stmtherly 
the  Pacitic 

,s  to  which 
art  of  the 
nd  on  the 
unel  conhl 

legotiation 
forty-ninth 
le  whole  of 
m  expecta- 
■  the  JJaro 
d  that  the 
iieant  than 

s  of  Fuca 
fultilleu  by 

Straits  by 

that  chau- 
n  of  Great 

t  of  Van- 

e  first  arti- 
istrated  by 

states  and 
to  a  joint 
aim  ou  the 

he  United 
the  same 

t,  1827,  the 

extended, 

ither  party 

u  wouhl  be 

B  southern 
IS,  by  their 

November, 


1813,  iMr.  Everett,  United  States  minister  to  London,  gives  an  account  ot 
an  interview  whicli  he  had  had  witl>  Ijord  Aherdecn  on  the  (Uii  of  tliat 
month.  His  lordship  considered  that  the  question  sis  to  tlie  northwestern 
boundary  stood  as  it  had  been  left  by  ^h:  Gallatin  in  his  negotiation 
with  Messrs.  lluskisson  and  Addington,  in  ISL'7.  Lord  Aberdeen 
assented  to  areuunk  of  i\Ir.  Eveiett,  that  the  numerous  stations  wliicli 
the  Hudson's  Bay  Comi)any  had  established  south  of  the  49th  degree, 
since  1818,  though  they  would  embarrass  the  Uritish  government  in 
reference  to  that  company,  and,  through  them,  in  reference  to  itubli, 
o[»inion,  ought  not  to  prejudice  the  claims  of  tlie  United  States.  Mr 
Everett  also  remarked  that,  in  ottering  the  line  of  4!>°,  we  acted  faiily 
and  liberally ;  that  tlie  otter  was  based  on  the  natural  principles  of  dis- 
tribution, while  they,  in  refusing  that  otter  and  insisting  on  tln^  Colum- 
bia lliver,  disregarded  such  principles,  ami  simply  insisted  u|)()n  a 
boundary  very  favorable  to  themselves.  The  United  States  otter  was 
in  accordance  with  the  rules  of  the  English  charters,  of  running  north- 
ern and  southern  boundaries  from  sea  to  se.a.  To  an  objecition  of  Lord 
Aberdeen,  that  lines  of  latitude  were  arbitrary,  Mr.  Everett  answered, 
that  they  were  as  likely  to  be  in  favor  of  Great  Britain  as  of  tiu^  United 
States,  and,  besides,  could  readily  be  ascertained  by  men  of  science; 
that  the  part  of  the  boundary  on  the  49th  i)arallel  was  tlu^  oidy  one 
respecting  which  no  controversy  had  arisen  or  was  '^  be  feared.  Fi- 
nally, Mr.  Everett  said,  that  an  equal  partition  of  t  o  territory  was  an 
obvious  and  natural  [)rinciple  of  division,  and  that  the  forty-ninth  piu- 
allel  was  nearly  an  equal  division  of  the  region  between  42°  and  54^.  K>. 
Mr.  Everett  said  to  Lord  Aberdeen,  that  when  the  United  States  pre 
sented  themselves  before  the  tribunal  of  the  public  opinion  of  the  world, 
with  a  statement  of  the  nature  and  foundation  of  their  claim  to  the 
whole  territory,  as  the  successors  of  Spain,  and  that  they  had  ottered  to 
England  a  partition  as  nearly  equal  as  could  be  made,  reserving  to 
themselves  only  the  half  to  what  they  had  a  better  inde|iendent  claim 
than  England,  founded  on  prior  discovery,  occupation,  and  exploration, 
and  to  wliich  they  had  the  fair  claim  of  contiguity  ami  natural  exten- 
sion, there  could  not  be  a  doubt  but  that  the  decision  of  that  tribunal 
would  be  in  their  favor. 

Mr.  Everett  went  on  to  remark  that  the  main  difticnlty  in  the  adop- 
tion of  the  forty-ninth  degree  to  the  ocean  was,  that  it  had  already  be«  n 
thrice  ottered  to  Great  Britain  and  always  rejected.  To  meet  this  dith- 
culty,  suggested  Mr.  Everett,  it  might  deserve  the  President's  consi<ler- 
atiou  whether  he  would  not  agree  to  give  up  the  southern  extremity  of 
Quadra  and  Vancouver's  Island,  (whicli  the  forty-ninth  degree  would 
leave  within  the  United  States,)  ou  condition  that  the  eutram;e  of  the 
Straits  of  Juan  de  Fuca  should  at  all  times  be  left  open  and  ^'ree  to  the 
United  States,  with  a  free  navigation  between  that  island  and  the  main- 
land, and  a  free  outlet  to  the  north. 

In  a  dispatch  of  the  2d  of  December,  Mr.  Everett  gives  an  account  of 
another  interview  with  Lord  Aberdeen  on  the  29th  of  November,  1843, 
in  the  course  of  which  his  lordship  stated  that  it  would  be  impossible 
for  the  ministry,  for  the  time  being,  to  accept  what  had  been  rejecte<l 
i:'  1824  and  182G ;  that  they  did  not  suppose  that  we,  any  more  than 
ttieroselves,  could  now  agree  to  terms  which  we  had  then  declined ;  and 
that,  consequently,  there  must  be  concession  on  both  sides ;  that  they 
were  willing  to  act  on  this  principle,  and  that  we  must  do  the  same. 

Mr.  Everett  says  that  he  regarded  that  observation,  now  made  to  him 
for  the  first  time,  as  very  important.  He  told  Lord  Aberdeen  that  he 
thought  it. would  be  very  ditticult  for  the  United  States  to  make  any 


M 


'  in 


308 


GENERAL   APPENDIX. 


tj 


hi' 


mil'- 


'I ' 


ma(li(ication  of  thoir  former  proposal,  except  in  one  pf)infc,  which  lie  re- 
jXiinled  as  very  important  to  Eu;>iaM(l.  fie  ti.oiijjfht  tlie  PresiHent  nii<jht 
be  iii(hu;e«l  so  far  to  depart  from  the  forty-ninth  paraUel  as  to  leave  the 
wiiole  of  Qnadra  and  Vancouver's  Island  to  England,  whereas  that  lino 
of  latitude  would  trive  the  United  States  the  southern  extremity  of  that 
island,  and  consequently  tlie  command  of  the  straits  of  Fuca.  Mr.  Ev- 
erett said  that  he  was  not  authorized  to  say  whether  that  would  be 
afjreed  to,  but  that  he  thought  and  wished  it  might  be.  lie  then  pointed 
out  on  a  nujp  the  extent  of  the  concession,  which  Lord  Aberdeen  said 
he  would  take  into  consideration. 

In  a  dispatch  of  the  1st  of  April,  1S^44,  Mr.  Everett  gives  an  account 
of  another  interview  which  he  had  witli  Lord  Aberdeen  on  the  Kith  of 
IMarch,  in  the  course  of  which  he  remarked  that,  in  proportion  as  his 
lordship  should  be  inclined  to  think  that  the  offer  formerly  nuule  by  the 
United  States  to  continue  the  forty-nLuth  to  the  sea  was  an  equitable 
offer,  he  ought  to  be  satisfied  with  but  a  moderate  departure  from  that 
I)roposal,  y)articularly  if  such  modification,  without  involving  a  great 
sacrifice  to  the  United  States,  were  eminently  advantageous  to  Great 
Britain.  In  fact,  such  a  modification  was  the  only  one  which  the  United 
States,  in  Mr.  Everett's  opinion,  could  be  brought  to  agree  to.  A  waiver 
by  the  United  States  of  their  claim  to  the  southern  extremity  of  Quadra 
and  Vancouver's  Island,  which  «ould  bo  cut  off  by  the  forty-ninth  de 
gree  of  latitude,  was  precisely  of  that  kind.  Lord  Aberdeen  did  not 
commit  himself  as  to  whether  such  a  proposition  would  be  accei)Led. 

In  a  dispatch  to  Mr.  Calhoun,  of  the  28th  of  February,  1845,  Mr.  Ev- 
erett, referring  to  the  proceedings  in  Congress  in  regard  to  the  estab- 
lishment of  a  territorial  government  in  Oregon,  stated  that  he  hud  had 
several  conversations  with  Lord  Aberdeen.  Mr.  Everett  expressed  an 
oi)inion  founded  on  them,  that  England  would  never  .'iccept  the  naked 
l)roposition  of  the  forty-ninth  degree;  but  that  she  would  accept  that 
line  with  the  modification  to  which  he  had  referred  in  previous  dis- 
])atches,  namely :  the  southern  extremity  of  Quadra  and  Vancouver's 
Island,  though  Lord  Aberdeen  bad  never  told  him  that  they  would  do 
this,  and  he  was  confident  that  this  was  the  best  boundary  which  the 
United  States  could  get  by  negotiation. 

In  a  dispatch  to  Mr.  Buchanan,  of  the  3d  of  March,  1846,  Mr.  McLane 
referred  to  interviews  which  he  had  had  with  Lord  Aberdeen,  and 
stated  that  he  had  little  or  no  expectation  that  the  British  government 
would  offer  or  assent  to  a  better  partition  than  the  extension  of  a  line 
on  the  49th  parallel  to  the  Straits  of  Fuca,  and  thence  through  the 
middle  of  those  straits  to  the  Pacific. 

In  a  dispatch  to  Mr.  Buchanan,  of  the  18th  of  May,  1846,  Mr.  McLane 
remarked :  "I  have  now  to  acquaint  j'ou  that,  after  the  receipt  of  your 
dispatches  o.i  the  loth  instant,  by  the  Caledonia,  I  had  a  lengthened 
conference  with  Lord  Aberdeen,  on  which  occasion  the  resumption  of 
the  negotiation  for  an  amicable  settlement  of  the  Oregon  question,  and 
the  nature  of  the  proposition  he  contemplated  submitting  for  that  pur- 
pose, formed  the  subject  of  a  full  and  free  conversation.  I  have  now 
to  state  that  instructions  will  be  transmitted  to  Mr.  Pakenham  by  the 
steamer  of  tomorrow,  to  submit  a  new  and  further  proposition  on  the 
part  of  this  government  for  a  partitic    of  the  territory  in  dispute." 

The  proposition,  most  probably,  will  offer  substantially:  "First.  To 
divide  the  territory  by  the  extension  of  the  line  on  the  parallel  of  forty- 
nine  to  the  sea ;  that  is  to  say,  to  the  arm  of  the  sea  called  Birch's 
Bay ;  thence  bj^  the  Canal  de  Arro  and  Straits  of  Fuca  to  the  ocean, 
and  confirming  to  the  United  States  what,  indeed,  they  would  possess 


GENERAL   APPENDIX. 


;J0!) 


icli  he  TO- 
out  mij^ht 
leiive  the 
i  that  lino 
ty  of  that 
JMr.  Ev- 
woiiUl  be 
ill  pointed 
(lee II  said 

n  aeeouiit 
he  Kith  of 
ion  as  his 
iide  by  the 

equitable 
from  that 
g  a  great 
■4  to  Great 
;he  United 

A  waiver 
of  Quadra 

•  ninth  de 
n  did  not 
jepied. 

5,  Mr.  Bv- 
the  estab- 
e  had  had 
)ressed  an 
the  naked 
jcept  that 
vious  dis- 
lucouver's 
would  do 
which  the 

r.  McLane 
deen,  and 
)vernuient 
a  of  a  line 
rough  the 

r.  McLane 
pt  of  your 
3Dgtheiied 
mption  of 
stion,  and 

•  that  pur- 
have  now 

am  by  the 
ion  on  the 
pute." 
First.  To 
1  of  forty- 
id  Birch's 
the  ocean, 
d  possess 


without  any  special  confirmation,  the  right  freely  to  use  and  navigate 
the  straits  throughout  its  extent." 

June  li!),  l.S4(!,  in  the  House  of  Coinn)ons,  Sir  llobert  I'eel,  in  teu(U'r- 
ing  the  resignation  of  the  ministry,  said,  in  reference  to  the  termination 
of  the  existing  convention  for  tlie  Joint  occupation  of  Oregon  by  (ireat 
Hritain  and  the  United  States:  "It  appeared  to  us  that  the  a<ldilion  of 
that  conciliatory  declaration — the  expression  of  a  hope  that  the  termina- 
tion of  the  convention  might  th<  more  strongly  imi>ress  upon  the  two 
countries  the  necessity  of  amicable  a«ljustment — removed  any  bariit'r 
which  diplomatic  jiunctilios  might  have  raised  to  a  renewal  by  this 
country  of  the  attempt  to  settle  our  differences  with  the  United  States. 
We  did  not  liesitate,  therefore,  within  two  days  after  the  receipt  ot 
that  intelligence — we  did  not  hesitate,  although  the  oiler  of  arbitrati(»n 
made  by  us  had  been  rejected — to  do  that  which,  in  the  presj'iit  state 
of  the  protracted  dispute,  it  became  essential  to  do,  namely,  not  to 
j)ropose  renewed  and  lengthened  negotiations,  but  to  specily  frankly 
and  without  reserve  what  were  the  terms  on  which  we  could  consent  to 
a  partition  of  the  country  of  the  Oregon.  Sir,  the  President  of  the 
United  States  met  us  in  corresponding  spirit.  Whatever  might  have 
been  the  expressions  heretofore  used  by  him,  however  strongly  he 
might  have  been  personally  committed  to  the  adoption  of  a  different 
course,  he  most  wisely  and  ]>atriotically  determined  at  once  to  refer  our 
proposals  to  the  Senate,  that  authority  of  the  United  States  whose 
consent  is  requisite  for  the  conclusion  of  any  negotiation  of  this  kind, 
and  the  Senate,  acting  also  in  the  same  pacific  s[)irit,  has,  I  have 
the  heartfelt  satisfaction  to  state,  at  once  advised  acquiescence  in  the 
terms  we  oflered.  From  the  importance  of  the  subject,  and  con- 
sidering that  this  is  the  last  day  1  shall  have  to  address  the  house  as 
a  minister  of  the  Crown,  I  may,  perhaps,  be  allowed  to  state  what  are 
the  proposals  we  made  to  the  United  States  for  the  final  settleireut  "f 
the  Oregon  question.  In  order  to  prevent  the  necessity  for  rene.ved 
diplomatic  negotiations,  we  prei)ared  and  sent  out  the  form  of  a  cob 
vention,  which  we  trusted  the  United  States  would  accept.*' 

Here  Sir  Robert  Peel  quoted  the  language  of  the  first  article  of  the 
treaty,  and,  in  explanation  thereof,  continued  :  "  Those  who  remember 
the  local  conformation  of  that  country  will  understand  that  that  which 
we  proposed  is  the  continuation  of  the  forty-ninth  parallel  of  latitude 
till  it  strikes  the  Straits  of  Fuca;  that  that  parallel  should  not  be  con- 
tinued as  a  boundary  across  Vancouver's  Island,  thus  depriving  us  of  a 
pnrt  of  Vancouver's  Island ;  but  that  the  middle  of  the  channel  shall 
be  the  future  boundary,  thus  leaving  us  in  possessnin  of  the  whole  of 
Vancouver's  Island,  with  equal  right  to  navigation  of  the  straits.  Sir, 
the  second  article  of  the  convention  we  sent  for  the  accei)tauee  of  the 
United  States  was  to  this  effect." 

Here  Sir  liobert  Peel  quoted  the  second  article  of  thr  treaty,  relating 
to  the  navigation  of  the  Columbia  Kiver. 

Continuing,  he  said:  "Sir,  I  will  not  occupy  the  attention  of  the 
House  with  mere  details.    I  have  read  the  in)portant  ju tides." 

Sir  Robert  further  quoted  an  official  letter  from  Mr.  Pakenham,  inti- 
mating the  acceptance  of  the  British  proposals,  and  giving  assurance 
of  the  immediate  termination  of  differences  with  the  United  States. 

Mr.  Pakenham  wrote,  under  date  of  June  13,  that  "  the  President 
sent  a  message  on  Wednesday  last  to  the  Senate,  submitting  for  the 
opinion  of  that  body  the  draught  of  a  convention  for  the  settlement  of 
the  Oregon  question ;"  that  after  a  few  hours'  deliberation  on  each  of 
the  three  days — Wednesday,  Thursday,  and  Friday — the  Senate,  by  a 


■'fi^ll 


:rfla 


:no 


GENKRAL    APPENDIX 


n  '  ( 


uiiijovit-.v  of  tliirtyei^iit  v<)t«'s  to  twelve,  Julo|)t<'<l  ye.stcrd.iy  oviMiiiif;  .» 
irs(»liiti()ii  iidvisiii};'  tlit^  Picsidcnt  to  ;i«'ct'|>t  the  terms  juoposed  by  Her 
]\liijesty's  «;(>venimeiit.  l*resideiit  I»ucliaiiaii  iUH'oi'«linj;ly  sent  lor  iiwi 
this  inorniii}'",  and  iiii'oniied  me  that  the  conditions  ottered  by  ller 
.Majesty's  {•overnnicnt  were  aeitepted  by  tiie  (rovjnninent  of  the  United 
Slates,  witliont  the  a(hlition  or  alteration  of  a  sinj;le  word.  Thus,  sir, 
■  ne  {i'overninents  of  two  ;L;reat  initious,  ini[)elled,  I  believe,  by  the  public; 
(•pinion  of  eatih  country  in  favor  of  i)ea('e,  have  by  moderation,  by  mu- 
tual compromise,  averted  the  dreadfid  calamity  of  u  war  between  two 
nations  of  kindred  orij4in  and  common  lan^iiiaj-c."  {Ilnnsanrs  Dehafcs, 
tul.  ST,  p.  10."){>  et  >ii'(i.) 

Viscount  J'almeiston  in  reply  said:  "  I  should  bo  sorry  to  leave  one 
topic  of  the  riyht  honorable  }«entkMnan's  speecdi  alter  the  deej»  pleasure 
which  it  1ms  affoi'ded;  I  mean  the  (!ommunicati(Ui  which  he  made,  and 
wlii(;h  will  be  received  with  entire  satisfaction,  not  oidy  within  the 
walls  of  Parliament  but  throu}>;hout  the  country,  that  the  unfortnmiti! 
dilferences  which  have  arisen  between  this  (!(uintry  and  the  United 
States  iiave  been  broiiyht  to  a  termination,  whi(!h,  as  far  as  we  <'an  at 
l>resent  Judye,  seems  (uiuulln  fai^'i  'tble  to  both  ixtrtitH.''''  {IlansanVs  JJo- 
h<(l(N,  '.Ul  ISeries,  rot.  87,  j).  lO")?  «-i  «tv/.) 

Tluipapem  n/ichich  the  J'oUoivUuj  k  a  si/nojisis  hear  date  suhncqucntly  to 
that  of  the  treaty  : 

Mr.  J.  ^Nhdlenry  Boyd,  char^;e  d'affaires  of  the  United  States  at  Lon- 
«lon,  in  a  dis))atclj  to  Mr.  IJnchanan,  Secretary  of  State,  of  the  lt>th  of 
October,  l.S-K>,  rei)resents  that  Jiritish  subjects  contemplated  settlinjion 
Whitby's  Island,  one  of  those  within  the  Straits  of  Fuca,  south  of  the 
forty-ninth  parallel  ;  that  the  liritish  j>overninent  had  consequently 
been  thrown  into  som^  doubt  whether,  accordinjif  to  the  boundary  in  the 
Oregon  treaty,  that  island  wouhl  fall  within  AnuMican  or  Jiritish  Juris 
diction.  IMr.  lioyd  accordingly  suj>gested  that  if  the  Department  was 
not  already  in  possession  of  evidence  clearly  defining  the  line,  measures 
shonld  be  taken  toward  obtaining  it,  for  the  purpose  of  meeting  the 
(juestiou  when  it  should  arise. 

In  a  dispatch  to  Mr.  Buchanan  of  the  3d  of  November,  1840,  Mr.  Ban- 
croft, then  Uiuted  States  minister  at  London,  requested  a  copy  of 
Wilkes's  chart  of  the  Straits  of  Ilaro,  it  having  been  intimated  to  him 
that  (piestions  might  arise  with  regard  to  the  islands  east  of  that  strait. 
Mr.  Ban(!roft  requested  authority  to  meet  any  such  claim  at  the  thresh- 
old, by  the  assertion  of  the  central  channel  of  Straits  of  Haro  as  the 
main  channel  intended  by  the  recent  treaty  of  Washington. 

Mr.  Buchanan  complied  with  Mr.  Bancroft's  request  l)yau  instruction 
of  the  28th  of  December,  184(}.  The  instruction  remarks  that  it  wasuot 
probable  that  the  British  government  would  seriously  claim  any  island 
east  of  the  Canal  of  Uaro.  That  no  doubt  that  was  the  channel  which 
Lord  Aberdeen  had  in  view  when,  in  conversation  with  Mr.  McLane,  about 
the  nuildle  of  May,  1840,  he  explained  the  character  of  the  proi)osition 
he  intended  to  submit  through  Mr.  Pakenhiim,  the  British  nunister  at 
Washington.  This  was,  first,  to  divide  the  territory  by  the  extension  of 
the  line  on  the  parallel  of  49°  to  the  sea  ;  that  is  to  say,  to  the  arm  of 
the  sea  called  Birch's  Bay,  thence  by  the  Caual  de  Haro  and  Straits  of 
Fuca  to  the  ocean. 

In  a  dispatch  to  Mr.  Buchanan  of  the  29th  of  March,  1847,  Mr.  Ban- 
croft adverts  to  supposed  wishes  of  the  Hudson's  Bay  Company  to  get 
some  of  the  islands  on  our  side  of  the  line  in  the  Straits  of  Fuca,  and 
says  that  he  would  not  be  surprised  if  a  formal  proposition  should  soon 
be  made  by  the  British  government  to  run  the  line.    The  proposition 


GENERAL    ArPENDIX. 


311 


!('(!  by  Her 
Mit  for  mo 
(I  by  Her 
Jul  Uniti'd 
Thus,  sir, 
tlu'  public; 
on,  by  111 II- 
t\V('<Mi  two 
Ps  Jkhaicx, 

>  k'jivo  ono 
'p  pk'iisiire 
]na<l(',  itiul 
witliiii  tlu! 
iiit'ortuiiiiti; 
:lie  Uniti'd 
;  wo  <'im  at 
)iNar(Vs  J)c- 

scquentUj  to 

tos  at  Lou- 
tlie  lJ)tli  of 
sottliiijioii 
»uth  of  tlie 
iiseqnently 
laiy  ill  the 
itish  Juris- 
•tineiit  was 
1,  ineas'ires 
loetiny  the 

0,Mr.  Baii- 
a  copy  ot 
ited  to  hi  1 11 
that  strait, 
the  thresh- 
laro  as  the 

instruction 
;  it  was  not 
any  ishiiid 
nnel  whicli 
jane,  about 
proposition 
iiinister  at 
xtension  of 
the  arm  of 
I  Straits  of 

I,  Mr.  Ban- 
ian y  to  get 
Fuca,  and 
hould  soon 
)ropositiou 


wonld  in  itself  bo  ])ropor  if  thoro  should  bo  no  ulterior  motive  to  raise 
unnecossiiry  <loubcs  and  to  rhiiin  islands  that  are  ptoporiy  ours.  He 
expH'ssed  his  belief  that  the  ministry  had  no  such  design.  Some  of  its 
members  would  be  the  first  to  frown  on  it.  • 

In  a  dispatch  to  Mr.  nnchanan,  of  the  4tli  of  Aufjust,  ISIS,  :Mr.  lian- 
croft  says  that  ho  had  been  told  by  Tiord  I'almorstoii  th:it  ho  had  made 
a  jiroposition  at  Washington  for  marUiiif;  the  boundary  and  tor  ascer- 
taining^ the  division  lino  in  tli(^  (ihaiinel  bynotiiifjthe  bearinjjs  of  certain 
objects.  "I  observed  that  the  water  in  the  channel  of  Haro  did  not 
retpiiro  to  bo  divided,  though,  of  course,  the  islands  oast  of  thi;  center 
channel  of  Haro  were  ours.  He  spoke  of  the  projiriety  of  settling  doli- 
nitively  the  ownorshij)  of  the  several  islands,  in  order  that  settlements 
might  not  be  begun  by  one  party  on  what  properly  belonged  to  the 
other." 

In  a  note  to  Mr.  Buchanan,  of  the  l.'^tli  of  January,  l.StS,  ^\r.  Crain])- 
ton  stated  that  he  had  been  instructed  to  propose  that  the  two  govern- 
ments should  proceed  to  mark  the  boundary  deiined  in  the  tr«'aty. 
After  remarking  upon  other  parts  of  the  line,  he  gcos  on  to  say:  "But 
between  tiie  Gulf  of  Georgia  and  the  Straits  of  Fuca  the  line  is  loss  dis- 
tinctly and  a(!curatoly  detined  by  the  verbal  description  of  the  treaty  by 
which  it  is  established,  and  local  circumstances  render  it  jirobable  that 
if  this  part  of  the  line  were  not  to  be  precisely  determined,  tln^  uiumm-- 
tainty  as  to  its  course  might  give  rise  to  disputes  between  Ihitish  sub- 
.je(!ts  and  citizens  of  the  United  States."  Mv.  Crampton  also  said,  in 
substance,  that  as  the  point  in  tho  center  of  the  channel  between  Van- 
couvers  Island  and  the  continent  could  not,  probablj',  be  marked  out  by 
any  object  to  be  permanently  lixed  on  the  spot,  it  should  bo  ascertained 
by  the  intersection  of  cross-bearings  of  natural  and  artificial  landmarks. 

He  goes  on  in  the  following  words:  "But  in  regard  to  this  portion  of 
the  boundary  line,  a  preliminary  question  arises,  which  turns  ujion  the 
interpretation  of  the  treaty  rather  than  upon  the  result  of  local  observa- 
tion and  survey.  The  convention  of  the  loth  of  June,  184G,  declares 
that  the  line  shall  be  drawn  through  the  middle  of  the  channel  which 
separates  the  continent  from  Vancouver's  Island.  And  upon  this  it  may 
be  asked  what  the  word  'channel'  intended  to  mean.  Generally  speak- 
ing, the  word  'channel,'  when  emploj-ed  in  treaties,  means  a  deep  and 
navigable  channel.  In  the  present  case  it  is  believed  that  only  one 
channel,  that,  namely,  which  was  laid  down  by  Vancouver  in  his  chart, 
has,  in  this  part  of  the  Gulf,  been  hitherto  surveyed  and  used,  and  it 
seems  natural  to  suppose  that  the  negotiators  of  the  Oregon  convention, 
in  employing  the  word  'channel,'  had  that  particular  channel  in  view." 

Mr.  Crampton's  note  was  accompanied  by  a  draught  of  instroctionsj  to 
the  commissioners  for  marking  the  boundary. 

The  receipt  of  the  communication,  however,  does  not  appear  to  have 
been  acknowledged. 

With  a  note  to  Lord  Palmerston  of  the  31st  of  July,  1848,  Mr.  Bancroft 
sent  a  copy  of  Wilkes's  chart  of  the  Straits  of  Juan  do  Fuca ;  but  re- 
marked that,  though  it  did  not  extend  to  the  i)arallel  of  49°,  it  «;outainod 
the  wide  entrance  into  the  Straits  of  Haro,  the  channel  through  the 
middle  of  which  the  boundary  was  to  be  continued. 

With  a  dispatch  to  Mr.  Buchanan  of  the  19th  of  October,  1848,  Mr. 
Bancroft  sent  a  copy  of  the  map  of  Vancouver's  Island,  by  Wyld,  geog- 
rapher to  the  Queen.  It  purports  to  mark,  by  a  dotted  line,  the  bound- 
ary between  the  United  States  and  Great  Britain.  "  You  will  see  that 
this  map  suggests  an  encroachment  on  our  rights  by  adopting  a  line  far 
to  the  east  of  the  Straits  of  Haro." 


■■■*-: 


312 


GENERAL  APPENDIX. 


M:i 


i 
1 


:Hi 


¥ 


i'l      I,! 
Til  ' 

i" 


Ml 

fiJt! 


Mi 

II  H 
i' 


|!< 


!  1. 


Mil 


4 


N  '< 


i^  * 


t'A<^ 


With  a  note  to  Lord  Pulmerston  of  the  .'3<1  of  NovciiiImm',  1848,  I\rr. 
IJiiiKMoft  sent  him  a  copy  of  thu  United  States  HiirveyH  of  the  waters  of 
I'liffet  SouihI  and  tliose  dividin)^  Vancouver's  Ishind  from  our  territcny. 
Mr.  Bancroft  remarket!,  "  Your  lordship  will  readily  trace  the  whole 
course  of  the  Channel  of  Ilaro,  through  the  nuddlo  of  which  our  bound* 
ary-line  passes." 

In  a  note  to  Mr.  Bancroft  of  the  7th  of  November  Lord  Palmerstoii 
thanked  him  for  the  surveys. 

Au  act  of  the  Congress  of  the  United  States  was  passed  on  the  11th 
of  August,  1850,  providing  for  the  demarkatiou  of  the  boundary  on  our 
])art.  Mr.  Archibald  Campbell  was  appointed  commissioner.  The  in- 
structions of  Mr.  Marcy,  Secretnry  of  State,  addressed  to  him  in  that 
(character,  be.nr  date  the  2oth  of  February,  1857.  They  do  not  advert  to 
any  particulars  in  regard  to  the  water-boundary.  The  following  is  a 
paragraph  of  the  instructions : 

Havin}?  completotl  tlio  orgiiiiization  and  ontfit,  and  made  the  otlior  preparations  in- 
dicated, yon  will  repair  to  Fiica  StruitH,  via  Han  Francisco,  to  meet  the  conuuis- 
Hioner  on  the  part  of  the  BritiHh  government,  and  proceed  with  him  to  determine  hucIi 
Itortion  of  the  line  descrihed  in  the  lirst  article  of  the  treaty  ua  is  provided  for  by  the 
act  above  cited. 

Captain  James  C.  Prevost,  of  Iler  Britannic  Majesty's  ship  Satellite? 
Mas  the  commissioner  on  the  part  of  Great  Britain.  After  divers  con- 
ferences with  ]\[r.  Campbell  on  the  subject  of  the  water-boundary,  he 
addressed  a  letter  to  him  under  date  the  28th  of  October,  1857,  setting 
forth  his  objections  to  the  adoption  of  the  line  of  the  Ilaro  Channel. 
These  are,  in  substance,  that  when  the  line  from  the  initial  point  in  the 
Gulf  of  Georgia  proceeds  in  a  southerly  direction  as  far  as  48^  45'  of 
north  latitude,  it  meets  a  group  of  islands  through  which  there  are  two 
passages.  One  of  these,  called  liosario  Strait,  is  near  the  continent, 
and  the  other,  called  Ilaro  Channel,  is  nearer  Vancouver's  Island.  lie 
asserts  that  the  only  navigable  channel  separating  the  continent  from 
Vancouver's  Island  is  liosario  Strait. 

He  cLiims  that  the  channel  contemydated  by  the  treaty  should  possess 
three  characteristics :  1st.  It  should  separate  the  continent  from  Van- 
couver's Island ;  lid.  It  should  admit  of  the  boundary-lino  being  carried 
through  the  middle  of  it  in  a  southerly  direction  ;  3d.  It  should  be  a 
navigable  channel.  To  these  conditions  the  Kosario  Strait  most  entirely 
answers.  He  goes  on  to  admit  that  che  Ilaro  Channel  is  also  navigable, 
but  on  account  of  the  currents  and  the  want  of  anchorage-grounds,  not 
so  easily  so.  He  asserts  that  that  channel  does  not  separate  the  con- 
tiiient  froui  Vancouver's  Island,  and  that  the  line  to  reach  that  channel 
must  proceed  for  some  distance  in  a  westerly  direction. 

Mr.  Campbell  replied  on  the  2d  oi  November,  1857,  that  as  the  Haro 
Channel  was  pre-eminent  in  widm.  depth,  and  volume  of  water,  this 
must  have  been  the  one  contempuited  by  the  treaty.  It  was  known 
under  its  name  since  the  lirst  discovery,  and  was  the  only  one  usually 
designated  by  name  on  the  maps  in  use  at  the  time  the  treaty  was  under 
consideration,  while  the  other  channels  only  separate  the  islands  in  the 
group  from  each  other ;  the  Haro  Channel  for  a  considerable  distance 
north  of  the  Straits  of  Fuca,  and  where  their  waters  unite,  washes 
the  shore  of  Vancouver's  Island,  and  is  therefore  the  only  one  which, 
according  to  the  language  of  the  treaty,  separates  the  continent  from 
Vancouver's  Island. 

The  term  southerly  used  in  the  treaty  would  not  admit  of  the  de- 
markatiou of  the  line  in  a  due  south  direction  through  any  channel.    It 


GENERAL    APPENUIX. 


313 


,  1848,  ^[r. 
>  waters  of 
•  territory, 
the  whole 
)ur  bound- 

'ulmerston 

I  the  nth 
ar.v  on  our 
The  in- 
tn  in  that 
t  advert  to 
wing  is  a 

arations  in- 
tbe  cuiuiuis- 
eriuine  hucIi 
il  for  by  the 

»  Satellite  J 
ivers  con- 
mdary,  he 
57,  setting 
Channel. 
)int  in  the 
48^  45'  of 
re  are  two 
continent, 
land.  He 
neut  from 

Id  possess 
roui  Van- 
jg  carried 
3uld  be  a 
st  entirely 
lavigable, 
junds,  not 
the  con- 
it  channel 

the  Haro 
ater,  this 
as  known 
o  usually 
was  under 
ads  in  the 
i  distance 
e,  washes 
ue  which, 
Qeut  from 

of  the  de- 
mnel.    It 


was  consequently  to  be  presumed  that  the  genera  direction  only  was  to 
be  toward  the  south. 

Kosaria  Straits  do  not  separate  the  continent  from  Vancouver's 
Island,  but  some  islands  from  others;  although  the  relative  merits  of 
the  mivigability  for  sailing-vessels  of  the  Haro  Channel  and  llosario 
Straits  was  not  to  be  regarded  as  having  any  bearing  on  the  determina- 
tion of  the  question.  Captain  Aldeii,  however,  of  the  United  Stales 
Navy,  who,  in  the  years  185;J  and  IS.")."),  had  made  surveys  of  those  wa- 
ters, had  otlicially  reported  the  Haro  Channel  as  the  widest,  deepest, 
and  best.  Keference  is  then  made  to  the  dispatch  of  INIr.  Me  Lane  to 
Mr.  liuchanauof  the  18th  of  May,  184(5,  in  which  he  reported  that  the 
line  of  the  Haro  Channel  was  to  be  proposed  by  the  British  govern- 
ment. Mr.  Campbell  thence  infers  that  the  object  of  the  framers  of 
the  treaty  was  to  run  the  line  so  as  to  avoid  cutting  off  the  southern 
Cfipe  of  Vancouver's  Island  by  adopting  the  line  through  the  Haro 
Channel.  The  speech  of  Mr.  Benton  in  the  Senate  relative  to  the  treaty 
shows  the  same  understanding  in  regard  to  it. 

Captain  Prevost  replied,  under  date  of  the  9th  of  November,  that  in 
his  opinion  the  Kosario  Channel  was  the  only  one  that  conformed  to  the 
language  of  the  treaty,  bj  separating  the  continent  from  Vancouver's 
Island.  The  Haro  Chainiel  separates  Vancouver's  Ishuul  from  the  con- 
tineut.  The  usual  terms  of  exi)ression  appear  to  be  designedly  re- 
versed in  the  treaty,  for  the  lesser  is  not  separated  from  the  greater, 
but  the  greater  from  the  lesser.  There  is  no  navigable  channel  between 
the  continent  ar.'l  the  islands  on  the  east  of  Itosario  Straits,  and,  there- 
fore, no  such  channel  as  the  treaty  calls  for.  From  the  Culf  of  Georgia 
to  the  Straits  of  Fuca  the  line  can  be  carried  through  Kosario  Straits 
in  a  southerly,  whereas  through  the  Haro  Channel  it  must  take  a  wes- 
terly direction. 

The  information  given  by  Mr.  McLane  was  as  to  a  probable  proposi- 
tion.   The  one  adopted  in  the  treaty  was  difierent. 

He  then  refers  to  Preuss's  map  of  Oregon,  printed  by  order  of  the 
Senate,  in  which  the  line  is  carried  through  Ilosario  Channel. 

Mr.  Campbell  rejoined,  under  date  of  the  18th  November,  1857,  that 
in  his  judgment  no  change  in  the  position  of  the  words  used  in  the 
treaty  could  nuike  any  ditterence  in  their  meaning.  Captain  Provost's 
admission  that  the  Haro  Channel  is  undoubtedly  the  navigable  channel 
which,  at  its  position,  separates  Vancouver's  Island  from  the  continent, 
might  be  regarded  as  tantamount  to  a  settlement  of  the  question.  Al- 
though Mr.  Mcl^ne  and  Mr.  Benton  were  not  the  signers  of  the  treaty, 
they  had  such  an  oflicial  connection  with  the  negotiations  that  their 
evidence  should  have  equal  weight  with  that  of  the  signers  themselves. 
Immediately  upon  the  receipt  of  Mr.  M(  Lane's  dispatch  of  the  18th  of 
May,Mr.Pakenham  submitted  to  Mr.  Buchanan  the  draught  of  a  conven- 
tion. This  draught  was  laid  before  the  Senate,  with  all  the  correspon- 
dence upon  the  subject,  and  was  approved  by  that  body.  The  draught 
referred  to  is  the  same,  word  for  word,  with  the  treaty  as  signed.  Mr. 
Campbell  shows  that  Captain  Prevost's  comment  upon  Mr.  McLane's 
dispatch,  to  the  effect  that  supposing  the  original  ])roposition  to  have 
been  as  reported  by  that  gentleman  it  was  designedly  altered  after  dis- 
cussion, to  be  without  foundation.  No  such  discussion  could  have  taken 
place  between  Mr.  McLane  and  Lord  Aberdeen  without  being  reported 
by  the  former ;  and  none  could  have  taken  place  between  Mr.  Pakea- 
ham  and  Mr.  Buchanan,  as  the  former  was  not  authorized  to  enter  into 
any.    Preuss's  map  had  no  otticial  authority. 

Captain  Prevost  replied,  under  date  of  the  24th  of  November,  1858,  that 


314 


GENERAL   APPENDIX. 


t  ■ 


■  4( 


the  coiitiiuMit  as  well  as  the  island  must  he  reffiirdod  according  to  its  nat- 
ural sigiiitication  and  according  to  its  natural  position;  and  tiiat  when 
two  channels  exist  hetween  a  continent  and  a  particular  island,  the  argu- 
ment apjx'ared  irresistible  that  the  channel  contigu(m .^  to  the  continent 
was  the  channel  separating  the  continent  from  the  island,  while  the  chan- 
nel contiguous  to  the  island  is  the  channel  separating  the  island  from  tiio 
continent.  The  inference  that  the  Haro  Channel  was  i)roposed  by  the 
]iritish  government  because  that  happened  to  be  mentioned  in  Mr.  j\Ic- 
Lane's  dispatch,  was  unwarrantable.  He  would  be  surprised  if  Captain 
Alden  should  not  agree  with  him  that  Kosario  Straits  are  preferable  to 
Haro  Channel  for  sailing-vessels.  Tiie  treaty  in  the  matter  of  the  chan- 
nel separating  the  continent  from  Vancouver's  Island  was  dear,  and  he 
could  not  admit  any  evidep.ce  on  this  subject  to  weigh  with  hiui  that 
would  lead  to  an  interpretation  that  the  precise  terms  of  the  treaty  would 
not  admit.  Although  ho  was  firm  in  the  conviction  that  Kosario  Straits 
and  not  Haro  Channel  was  the  one  contemplated  by  the  treaty,  he  was 
willing  to  regard  the  Gulf  of  Georgia  as  one  chanr<el,  and  agree  to  a  line 
passing  through  the  middle  of  it,  so  far  as  the  islands  would  permit. 

Mv.  Campbell  rejoined,  under  date  of  the  2.Sth  of  November,  1858, 
that  the  projjosed  instructions  to  the  coaimissioners  which  accompanied 
Mr.  Crampton's  note  to  Mr.  Uuchanan,  of  the  13th  of  January,  1848, 
contained  the  following  sentence:  ''From  that  point  you  will  carry  on 
the  line  of  boundary  along  the  forty-ninth  parallel  of  latitude  to  the 
middle  of  the  channel  between  Vancouver's  Island  and  the  continent." 

This,  Mr.  Cami)bell  contends,  shows  the  view  of  the  British  govern- 
ment within  two  years  after  the  conclusion  of  the  treaty.  He  adds 
that,  in  1S18,  Rosario  Straits  was  not  claimed  on  the  ground  that  there 
Wits  anything  peculiar  in  the  wording  of  the  treaty;  nor  was  there  any 
claim  founded  upon  the  supi)osition  of  a  "designed  alteration"  of  the 
originaldranghtof  the  treaty  by  omitting  the  Haro  Channel  and  substitu- 
ting its  present  language.  In  opposition  to  Captain  Prevost's  opinion 
that  the  words  of  the  treaty  were  so  peculiarly  ])reci8e  and  clear  as  to 
point  out  unmistakably  Kosario  Straits  as  the  channel,  Mr.  Crampton, 
speaking  on  the  part  of  his  government,  says:  ''But  between  the  Gulf  of 
Georgia  and  the  Straits  of  Fuca  the  line  is  less  distinctly  and  accurate- 
ly defined  by  the  verbal  description  of  the  treaty."  In  regard  to  this, 
Mr.  Campbell  quotes  the  following  passage  from  Vattel:  "If  he  who 
can  and  ought  to  have  explained  himself  clearly  and  plainly  has  not 
done  it,  it  is  the  worse  for  him.  He  cannot  be  allowed  to  introduce 
subseipient  restrictions  which  he  has  not  expressed."    . 

Mr.  Campbell  declined  accepting  Captain  Provost'cj  proposition,  and 
expressetl  the  opinion  that  there  was  not  the  slightest  probability  that 
the  British  government,  Captain  Prevost,  or  any  other  person,  would 
ever  be  called  upon  for  a  renewal  of  it. 

Captain  Prevost  replied,  under  date  of  the  1st  of  December,  1857, 
that  if  the  treaty  was  intended  by  the  United  States  Government  to  ac- 
cord with  the  correspondence  of  ]\Ir.  McLane  and  the  speech  of  Mr. 
Benton,  the  general  maxim  which  Mr.  Campbell  had  qnoted  from  Vattel 
Avould  be  more  ap[)licable  to  the  United  States  than  to  the  British  gov- 
ernment; for,  if  the  former  intended  that  the  line  should  run  through 
the  Haro  Channel,  they  should  have  taken  care  that  it  was  so  expressed 
"clearly  and  plainly  "  in  the  treaty.  Ii!  conclusion,  he  proposed  a  con- 
ference, in  order  that  it  might  be  formally  recorded  that  the  commis- 
sioners were  unable  to  agree ;  that  Mr.  Campbell  had  declined  to  accede 
to  his  proposition  for  a  compromise,  and,  therefore,  that  the  whole  mat- 
ter might  be  referred  to  their  respecti>'e  goverumeuts. 


GENKRAL   APPENDIX. 


315 


to  its  nat- 
liat  wlum 
the  iwini- 
contiiiLMit 
tliO(5haii- 
Ifroin  tlio 
ed  by  the 
1  Mr.  IMc- 
f  Captain 
t'erable  to 
the  chau- 
ir,  Hinl  he 
him  that 
ity  wonhl 
io  Straits 
V,  he  was 
IS  to  a  line 
>erinit. 
_)er,  IS^S, 
)m  pan  led 
iry,  184S, 
carry  on 
de  to  the 
nitinent." 
ii  jjovern- 
He  adds 
hat  there 
liere  any 
i"  of  the 
snbstitu- 
I  opinion 
ear  as  to 
rainpton, 
leGnlfof 
accnriite- 
d  to  this, 
f  he  who 
has  not 
ntroduce 

tion,  and 
ility  that 
m,  would 

)er,  1857, 

nt  to  ac- 

h  of  "Sir. 

m  Vattel 

tish  gov- 

th  rough 

X pressed 

ed  a  con- 

conunis- 

:o  accede 

lole  mat- 


Mr.  Campbell  replied  on  the  2d  of  December,  recapitulating  his  pre- 
vious arguments,  and  concluding  with  tlie  remark  that  he  thouglit  any 
proposition,  with  a  view  to  concession  on  the  part  of  United  states,  was 
hardly  justilhible  under  the  circumstancies. 

In  a  report  to  General  Cass,  Secretary  of  State,  of  +he  25th  of  Sep- 
tember, 1858,  Mr.  Campbell  represents  that  the  settlement  of  the  (pies- 
tion  of  the  channel  involves  the  sovereignty'  of  the  group  of  islands 
called  the  Ilaro  Archipelago,  between  the  Haro  Channel  and  Ifosario 
Straits,  embraced  in  a  space  of  about  four  huiulred  S('uare  niiles.  lie 
then  pro(!eeils  to  show  the  importance  of  these  islands,  in  a  military  and 
naval  point  of  view,  quoting  olhcial  oj)inions  of  officers. 

In  a  letter  to  Mr.  Campbell  of  the  15th  of  June,  1858,  Mr.  Bancroft 
states  that  he  was  in  Mr.  Polk's  cabinet  when  the  Oregon  treaty  was 
concluded,  and  that  the  general  understanding,  both  in  England  and  in 
the  United  States,  was,  tliat  the  British  boundary  was  to  extend  to  the 
nii<ldle  of  the  Ilaro  (Channel. 

In  a  full  and  elaborate  report  to  General  Cass  of  the2()th  of  Janmiry, 
1859,  j\lr.  Caini»l)ell  reviewed  his  proceedings  as  commissioiuM',  and  Ci»m- 
mented  on  the  respective  claims  of  the  i)arties  to  tiieclianiud  mentioned 
in  the  treaty.  In  the  course  of  his  letter  Mr.  Camjjbell  expresses  an 
opinion  that  the  com])r()mise  line  olfered  by  Captain  Prevost  would  not 
be  a  suitable  channel  for  a  boundary,  with  such  channels  as  Ilaro  and 
Kosario  in  its  vicinity.  Iii  su])port  of  this  opinion,  he  states  the  maxi- 
mum and  minimum  width  of  the  several  channels,  and  refers  to  other 
im])ortant  circumstances. 

With  a  letter  to  the  Department  of  the  21st  of  June,  1850,  Mr.  Camp- 
bell transmitted  a  co|)y  of  the  (Joast  Survey  chart  of  the  space  between 
the  continent  and  Vancouver's  Island,  corrected  by  the  results  of  a 
survey  of  the  same  space  by  Captain  lli(;hards,  of  the  British  navy, 
acting  on  behalf  of  his  government.  In  the  course  of  his  h'tter,  Mr. 
Campbell  reinesents  that  the  mai)  adverted  to  shows  that  there  is  still 
anotiier  channel  nearer  to  Vancouver's  Island  than  that  of  Ilaro,  which 
answers  the  description  in  the  treaty  as  separating  the  contineiit  from 
that  island.  The  lines  on  the  mai)  indicate,  according  to  Mr.  Cam[)- 
bell's  statement — 

1st.  The  boundary-line  contemplated  by  the  treaty,  as  shown  by  con- 
teniporaneous  evidence,  through  the  nuddle  of  the  Ciulf  of  Georgia  and 
Ilaro  Channel,  the  main  channel  between  the  continent  and  Vancouver's 
Island. 

2d.  The  bouinlary-line  claimed  by  the  British  commissioner  through 
the  Gulf  of  Georgia  and  llosario  Straits,  on  the  pretense  that  the  chan- 
nel which  separates  the  contineut  from  Vancouver's  Island  means  the 
chaniH'l  iKiarest  to  the  cominent. 

3d.  Tlu^  bouiularysine  i»roposed  by  the  British  commissioner  as  a 
compromise  througii  the  Gulf  of  Georgia,  a  part  of  the  Haro  Cliannel, 
and  the  channel  east  of  San  Juan  Island. 

4:th.  The  boundary-line  whicii  might  be  claimed  by  the  United  States 
in  accordance  with  the  letter  of  the  treaty,  or  by  adopting  an  interpre- 
tation of  it,  so  as  to  carry  out  the  sole  object  of  the  deviation  of  the 
boundary-line  from  the  forty-ninth  i)arallel  to  the  ocean,  through  the 
Straits  of  Fuca,  viz,  to  give  the  whole  of  Vancouver's  Island  to  Great 
Britain. 

5th.  Track  of  steamers  plying  between  Victoria  and  Fraser  Itiver 
since  the  discovery  of  gold. 

A  copy  of  instru(!tions  of  the  British  government  to  Captain  Prevost 
was  obtained  through  Mr.  Dallas,  United  States  minister  at  London. 


•- 

r 


I 


316 


GENERAL    APPENDIX. 


Hit' 

til; 


■»■;   II 


1? 

i 


They  bear  date  the  20th  December,  IsrJO,  aad  express  the  opinion  that 
the  liosario  Channel  was  the  boundary  contemphited  by  the  treaty. 
They  use  the  following  language:  "  If,  however,  tha  commissioner  of 
the  Utiited  States  will  not  adopt  the  line  along  Kusario  Straits,  and  if, 
on  a  detailed  and  aecu'-ate  survey,  and  on  weighing  the  evidence  on 
both  sides  of  the  question,  you  should  be  of  opinion  that  the  claims  of 
her  Majesty's  government  to  consider  Eosario  Straits  as  the  channel 
indicated  by  the  words  of  the  treaty  cannot  be  substantiated,  you  would 
be  at  liberty  to  adopt  any  otlier  intermediate  channel  which  you  may 
discover  on  which  the  United  States  commissioner  and  yourself  may 
agree,  as  substautially  in  accordance  with  the  description  of  the  treaty." 

A  copy  of  these  instructions  having  beeu  communicated  to  Mr. 
Campbell,  he  remarks,  in  a  letter  to  the  Department  of  the  4th  of 
August,  1859,  that  they  show  tiuit  Captain  Prevost  was  by  them  vir- 
tually, if  not  positively,  prohibited  from  adopting  the  Haro  Channel  as 
the  boundary  channel  intended  by  the  treaty. 

With  a  letter  to  the  Depaitment  of  the  18th  of  August,  1858,  Mr. 
Campbell  communicated  information  of  the  landing  of  a  company  of 
United  States  troops,  under  command  of  Captain  Picliett,  on  the  island 
of  San  Juan,  on  the  26th  of  July.  He  also  communicated  a  copy  of  the 
])rotest  of  Governor  Douglas,  of  Vancouver's  Island,  against  the  mili- 
tary occupation  of  that  island  by  any  other  than  a  British  force. 

In  a  letter  of  Mr.  Drinkard,  Acting  Secretary  of  War,  to  Gen.'  ;0 
Harney,  of  the  3d  of  Septejnber,  1859,  the  occupation  of  San  J;  a 
lisiand  by  a  military  force  is  not  approved. 

In  a  letter  of  Mr.  Drinkard  to  General  Scott,  of  the  10th  of  Septem- 
ber, 1859,  the  wish  of  the  President  was  referred  to  tliat  he  sliould 
take  command  of  the  military  forces  on  the  Pacific  coast,  and  ho  was 
instructed  that  until  the  title  to  the  island  of  San  Juan  could  be 
adjusted  it  would  be  desirable  for  him  to  arrange  for  a  joint  occupation 
of  that  island. 

This  General  Scott  did,,  in  a  letter  of  the  25th  of  October,  1859,  to 
Governor  Douglas,  of  Vancouver's  Island.  The  proposition  was  at  tirst 
declined,  but  was  afterward  practically  acceded  to  by  the  landing  of  a 
body  of  British  marines  r.t  the  north  end  of  the  island.  The  joint  mili- 
tary occupation  has  ever  sinc<^  continued. 

Under  date  the  12th  of  INIay,  1859,  Lord  Lyons  addressed  a  note  to 
General  Cass  relative  to  attempts  of  citizens  of  the  United  States  to 
establish  themselves  on  tiie  island  <»f  San  Juan,  and  stated  that  his 
government  trusted  that  the  United  States  Government  woidd,  so  far 
as  it  could,  restrain  them  from  attem[»ting  to  settle,  by  unauthorized 
acts  of  violence,  a  question  which  there  v,ould  probably  be  little  ditti- 
culty  in  arranging  by  amicable  communication  between  the  two  gov- 
ernments. 

In  an  instruction  to  Lord  Lyons  of  the  24th  of  August,  1859,  Lord 
Kussell  referred  to  the  disagreement  between  the  American  and  British 
commissioners  in  reganl  to  the  dennirkation  of  the  water  boundary, 
expressed  regret  that  no  u.ap  was  annexed  to  the  treaty  of  184(5,  but 
stated  that  his  government  fully  concurred  w'th  their  conmissioner 
that  the  line  should  run  through  Kosario  Straits.  He  then  proceede^^' 
to  review  the  arguments  on  both  sides,  and  concluded  by  proposing  t'  ' 
same  conipromise  line  as  that  ottered  to  Mr.  Campbell  by  Captain  Pre- 
vost, and  by  declaring  that  his  government  must,  under  any  circum- 
stances, maintain  its  right  to  the  island  of  San  Juan. 

This  paper  was  fully  reidied  to  by  General  Cass  in  au  iirs. taction  to 
Mr.  Dallas  of  the  20th  of  October,  1859.    After  ad  a  ting  t"  "ucum- 


* 


GENERAL    APPENDIX, 


317 


lion  that 
e  treaty, 
sioiier  of 
s,  and  if, 
leiico  on 
jlainis  of 
channel 
ou  would 
yon  may 
self  may 
)  treaty." 
I  to  Mr. 
le  4th  of 
:hem  vlr- 
lannel  as 

1858,  Mr. 
npany  of 
he  island 
•py  of  the 
the  mili- 
ce. 

GeiM-  ■;»,> 
iau  J     u 

Septera- 
e  sliould 
d  he  was 
could  be 
cnpatiou 

1859, to 
IS  at  tirst 
liufjf  of  a 
oint  mili- 

i  note  to 
States  to 
that  his 
d,  so  far 
itiu)rized 
ttle  dim- 
two  gov- 

559,  Lord 
d  British 
oundary, 
184<),  but 
nissioner 
roceede^' 
osing  t'  ' 
;ain  Pre- 
circum- 

iiction  to 
<  'Mrcum- 


stances  leading  to  the  treaty  of  1840,  and  stating  that  the  object  of  the 
United  States  in  accei)ting  tiwit  instrument  was  to  allow  to  Great  Britain 
the  whole  of  Vancouver's  Island,  but  to  exclude  her  from  any  other 
territory  south  of  the  parallel  of  49^,  the  instruction  goes  on  to  remark 
that  the  friendly  sentiments  expressed  in  Lord  Itu-^sell's  paper  do  not 
harmonize  with  the  declaration  which  it  contained  that  the  British  gov- 
ernment would,  under  any  circumstances,  maintain  its  right  to  the  island 
of  iSan  Juan.  If  this  declaration  should  be  insisted  on,  said  (Jeneral 
Cass,  it  must  terminate  the  negotiation  at  its  threshold.  The  i)roposi- 
tiou  for  compromise  assumes  that  the  disagreement  in  respect  to  the 
treaty  is  irreconcilable.  The  failure  of  the  commissioners  to  agree  was 
in  part,  at  least,  imputable  to  the  peculiar  character  of  the  instructions 
to  the  British  commissioner.  At  the  time  of  the  negotiation  of  the 
treaty,  all  that  the  British  government  claimed  was  that  the  line  should 
deliect  from  the  forty-ninth  parallel  so  far  as  to  assign  to  them  the 
whole  of  Vancouver's  Island.  This  was  all  that  the  xYmerican  Govern- 
ment conceded.  Mi*.  Buchanan  had  instructed  Mr.  McLane  that,  except 
for  this  purpose,  the  President  would  never  consent  to  bring  the  British 
boundary  a  single  inch  below  the  parallel  of  49°,  and  no  other  juirpose 
than  this  was  anywhere  avowed.  Tiie  Haro  is  the  only  channel  wliich 
Avould  not  leave  something  more  to  Great  Britain  south  of  the  forty- 
ninth  parallel  than  the  southern  cape  of  Vancouver's  Island.  Whether 
the  Haro  was  or  was  not  the  true  channel  in  the  opinion  of  the  British 
uegotiators,  it  was  quite  certain,  from  current  testimony  of  both  the 
American  and  British  negotiators,  tliat  the  Kosario  Channel  was  not. 
The  Douglas  CUannel,  which  was  suggested  by  Lord  Ilussel-  is  admitted 
to  be  an  inferior  one,  scarcely  capable  of  navigation,  except  by  steamers, 
and  was  supiiosed  to  be  recommended  because  it  would  leave  the  island 
of  San  Juan  to  Great  Britain. 

In  an  instruction  to  Lord  Lyons,  of  the  KJth  of  Drcember,  1859,  Lord 
Russell  replied  tiiat  his  government  could  not  concur  in  the  conclusions 
to  which  General  Cass  had  arrived.  What  Lord  Aberdeen  meant  by 
King  George's  Sound,  down  which  the  line  was  to  run,  might  be  clearly 
inferred  from  a  letter  addressed  to  him  at  the  time  of  the  conclusion  of 
the  treaty,  by  Sir  John  Pelly,  then  the  governor  of  the  Hudson's  Bay 
Company,  of  which  letter  the  following  is  an  extract :  "  With  respect  to 
the  other  islands,  the  water  demarkation  line  should  be  from  the  cen- 
ter of  the  water  in  the  Gulf  of  Georgia,  in  the  forty-ninth  degree,  along 
■^l;e  line  coloied  red  as  navigable  in  the  chart  made  by  Vancouver  until 
reaches  a  line  drawn  through  the  center  of  the  Straits  of  Juan  de 
The  only  objection  to  this  is  giving  to  the  United  States  the  val- 
'  : '  e  island  of  Whidbey."  However  the  British  government  migiit  be 
M  sposed  to  rely  on  the  instructions  of  Lord  Aberdeen  and  the  letter 
of  Sir  John  Pelly,  and  the  United  States  on  the  statements  of  Mr. 
McLane  and  Mr,  Benton,  it  must  be  coniessed  on  both  sides  that  the 
interpretation  of  one  party,  without  the  expressed  assent  of  the  other, 
goes  but  very  little  way  to  remove  the  uiiliculty.  Lord  Bussel  concludes 
his  paper  with  a  dire<!tion  to  renew  the  otter  of  comi)romise. 

General  Cj'ss,  in  an  instruction  to  Mr.  Dallas,  of  tlie  4th  of  February, 
186(»,  after  adverting  to  other  points  in  the  instruction  of  Lord  liussell 
to  Lonl  Lyons  of  the  iCth  of  December,  1859,  states  that,  as  Lord 
I'lissell  repeats  his  original  declaration  that  no  settlement  of  the  ques- 
tion would  be  accepted  by  the  British  government  which  did  not  jirovide 
for  the  reservation  of  the  island  of  San  Juan  to  the  British  Crown,  the 
President  had  directed  him  to  state  that  the  United  States  would,  under 
all  circumstances,  maintain  their  right  to  the  island  in  controversy  until 


M 

;l  "i 


318 


GENERAL    APPENDIX. 


'm 


the  question  of  title  to  it  should  be  (k'tennined  by  some  amic.ible 
anaiiyement  between  the  parties. 

In  an  instruetion  to  Lord  Lyons  of  the  9th  of  Mareh,  18(50,  Lord 
liusscll  refers  to  his  declaration  contained  in  his  dis|)atch  of  tlie  2ith  of 
August,  to  wiiich  exception  was  talien  by  General  Cass,  and  was  put 
Jorwanl  as  a  ground  for  declining  to  continue  the  discussion.  Lord 
Jiussell  expresses  disap]>ointnient  that  tlie  explanation  Avhich  Lord 
Lyons  was  authorized  to  olfer  wt>s  not  accepted  as  satisfactory,  "  Her 
[Majesty's  government  maintain  that  either  the  Canal  de  Kosario  or  the 
Douglas  Channel  might  be  held  to  be  the  boundary  contemplated  by 
the  treaty  ;  but  that  the  Canal  de  Haro  neither  fulfills  the  intention  of 
the  British  negotiators  of  the  treaty,  nor  is  consistent  with  the  words 
of  the  treaty  itself." 

In  an  instruction  to  Mr.  Dallas  of  the  23d  of  April,  ISGO,  General 
Cass  remarked  that,  as  Lord  liussell  had  acknowledged  that  the 
expression  objected  to  in  his  dispatch  of  the  24th  of  August,  1859, 
A\  as  not  intended  to  convey  the  meaning  which  this  Government  had 
attached  to  it,  the  subject  was  now  free  from  the  embarrassment  occa- 
sioned thereby.  General  Cass  also  referred  to  the  8]>eech  of  8ir  Kobert 
l*eel  on  the  trea  •  n  the  House  of  Commons  on  the  29th  c'  June,  18-10, 
as  showing  that  ta  ection  in  the  line  from  the  parallel  of  49°  had 

not  left  Great  Brit.  n  the  possession  of  any  other  island  than  that 
of  Vancouver.  "  Whiie  the  President,  therefore,  feels  himself  obliged 
to  decline  to  adopt  the  Douglas  Channel  as  the  boundary  of  the  two 
countries  between  Vancouver's  Island  and  the  continent,  aiul  to  nniin- 
tain  the  Canal  de  IJaro  as  the  true  boundary  in  that  (piarter,  which  was 
intended  by  the  treaty,  he  is  glad  to  believe  that  no  serious  injury  can 
be  intiicted  on  British  interests  by  the  adoption  of  the  Anun-ican  line." 

In  a  note  to  General  Ciss  of  the  10th  of  December,  1800,  Lord  Lyons 
])roposed  that  the  question  of  the  water  bouiulary  should  be  referred  to 
the  arbitration  of  a  reigning  prince  or  sovereign  state. 

No  reply  appears  to  have  been  made  to  this  note. 

No  diplomatic  discussion  of  the  question  of  boundary  has  since  taken 
place. 


.amicable 


8(J0,  Lord 
lie  litth  of 
was  put 
1)11.  Lord 
lich  Lord 
\V,  "  Her 
irio  or  the 

I  plated  by 
iteiition  of 
the  words 

[),  General 
that  the 
list,  1859, 
iiieiit  had 
iieut  occa- 
Sir  llobert 
line,  184G, 
•f  49^  had 
than  that 
If  obliged 
f  the  two 

II  to  main- 
vhich  was 
njury  can 
icaii  line." 
M\\  Lyons 
.'ferred  to 


nee  taken 


VI.-THE  CLAIMS  OF  THE  UNITED  STATES  ACAIXST  CHEAT 
BRITAIN  ON  ACCOUiNT  OF  ACTS  COMMITTED  BV  REBEL 
CRUISERS. 


1.  CONCESSION  OF  BELLIGERENT  RIGHTS. 

The  dates  of  the  several  acts  v. liich  inive  been  jited  by  either  party 
in  the  discussion  of  this  (piestion  are  herewith  given  : 

Fort  iSamter  surrendered.  i-r.i,  Apni  u. 

riesi<leiit  Lincoln,  by  proclamation,  called  oat  the  militia  inm.  Apr.i  i -. 
and  convened  Congress. 

Jelferson  Davis,  by  proclamation,  gives  notice  that  he  will  i^i.  Apni  ir. 
grant  letters  of  marqne.     {Received  by  Jirttisli  (jovernment  May  10.) 

President  Lincoln  issues  his  lirst  jn'oclaiiiation  of  blockade,  i^ci.  aimu  w. 
which  was  as  follows : 

By  the  I'residcnt  o/thr  United  iitatis. 

A   PKOCLAM.V'IIOX. 

Whereas  an  insurrection  a;?ainst  tlie  Gi)vcr«nieut  of  the  United  States  has  hrokeu 
ont  in  tilt?  States  ot  Sontli  Carolina,  Geor{j;ia,  Alabanni,  Florida,  Mississippi,  Louisiana, 
and  Texas,  and  the  laws  of  the  United  States  for  the  eolleetion  of  the  revenue  cannot 
be  etfeetnally  exeentetl  tlierein  conformably  to  that  provision  of  tiie  Constitution  which 
retinires  duties  to  be  uniform  thronnhout  the  United  States  ; 

Au<l  whereas  a  conibiuatiou  of  persitns,  eui;a;;ed  in  sueii  insurrection,  have  threatein'<l 
to  grant  pretended  letters  of  mar»iue  to  authorize  the  bearers  thereof  to  eoiniuit  assaults 
ou  the  lives,  vessels,  an;!  property  of  j;ood  citizens  of  tin;  country  lawfully  eiij^ajfed  in 
commerce  ou  the  hi<fh  se.s,  and  in  waters  of  the  United  States; 

And  whereas  an  (.'xecutu  c  i>roclamatiou  has  been  already  issued,  retiuirinj;  tlu!  jter- 
•sous  enframed  in  these  disorderly  proceedinj^s  to  desist  therefrom,  eailin;;'  out  a  militia 
force  for  the  purpose  of  rei»re,ssin<f  the  same,  aiul  convening  Congress  in  cxtraordiiuiry 
session  to  deliberare  and  <letermine  thereon  : 

Now,  therefore,  I,  Abraham  Liueolu,  Fresident  of  ihe  UnitcMl  States,  with  a  A'iow  to 
the  same  purposes  befoie  mentioned,  ami  to  the  ]tiotection  of  the  public  peace,  and  the 
Jives  and  property  of  tjuiet  and  orderly  citizens  pursuing  their  lawful  occui)atious, 
until  Congress  shall  have  assembled  and  delil>eratetl  on  tlu'  said  uidawfnl  proceedings, 
or  until  th(^  same  shall  have  cease«l,  have  further  deemed  it  a<lvisable  to  set  on  foot  a 
blockade  of  the  ports  within  the  States  aforesaid,  in  pursiuince  of  the  laws  of  the  United 
States  ami  of  the  law  of  nations  in  such  «ases  provided.  For  this  pnrjiose  a  competent 
force  will  be  posted  so  as  to  jirevent  entrance  and  exit  of  vessels  from  the  ports  afore- 
said. If,  therefore,  with  a  view  to  violate  such  blockade,  a  vessel  sJniU  approach,  or 
shall  attempt  to  leave  either  of  the  said  jiorts,  she  will  be  duly  warned  by  the  eom- 
nuiuder  «)f  one  of  the  blockading  vessels,  wlu)  will  indorse  on  her  register  the  fact  and 
date  of  such  warning,  and  if  the  same  vessel  shall  again  attempt  to  <nter  oi  leave  the 
blockade*!  |)ort,  she  will  be  captured  ami  sent  to  tin;  nearest  convenient  jtort,  for  such 
]uoce»Hlings  against  her  and  her  cargo  as  prizi-  as  nuiy  lie  deemed  advisable. 

Ami  I  hereby  proclaim  and  declare  ihat  if  any  jierson,  under  the  preteudctl  authority 
of  the  said  States,  or  uiuler  any  other  ])retense,  shall  UM)lest  a  vessel  of  the  I'nited 
States,  or  the  persons  or  cargo  on  board  of  her,  such  persons  will  be  held  ameualde  to 
the  laws  of  the  Uiuted  States  for  the  prevention  and  punishment  of  piracy. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  United 
States  to  be  afhxed. 

Done  at  the  city  of  Washington  this  nineteeutli  day  of  April,  in  the  year  of  our  Lord 
one  thousantl  eight  hundred  aiul  sixty-one,  and  of  the  Independence  of  the  I'nited 
States  the  eighty-lifth. 

[I..  8.]  ABRAHAM  LINCOLN. 

By  the  President : 

Wll.UAM  H.  Skwaud, 

Setrvtdry  of  Slatei 


M 


320 


GENERAL   APPENDIX. 


k3 


(^ 


! 


1    . 


'h 


I    t 


^^\\ 


IHfil,  April  22. 


1B61,  April  27. 


Troops  of  the  United  iJtates  on  the  way  to  Washington  were  attacked 
1851  ,  iiu  l\v  a  mob  in  Baltimore.  Commnnication  by  railroad  and  tele- 
' '  '"  ■  j>rapli  between  Washington  and  New  York  and  north  of  that 
point  was  interrupted  by  the  rebels  from  the  21st  to  the  28th  April  in  case 
of  telegraph,  and  from  April  19  to  May  3  and  after,  in  case  of  railroad. 
Passeiigers  were  two  or  three  days  in  making  difficult  and  expensive 
transit  in  carriages  on  and  after  the  20th.    {Yide  Nevs  Yorli  Herald.) 

The  steamer  Caiuidian  sailed  from  Portland,  taking  the  Boston  papers 
1861        2    ^*  ^'^'^^  ^^'*^ '  ^^^^^'  telegraphic  accounts  of  the  riots  at  Baltimore, 
'*""""'  and  what  purported  to  be  a  version  of  the  President's  procla- 
mation, which  version  appeared  in  the  London  journals  as  hereafter 
stated. 

The  Department  of  State  issued  a  circular  to  its  representatives 

ia«i       20  ^'^^^'"''^^^  which  purported  to  inclose  a  copy  of  the  President's 

first  proclamation  of  blockade.    ( Vol.  /.,  p.  20.) 

Lord  Lyons  incloses  an  unofficial  copy  of  a  proclamation  of  blockade 

to  his  government,  (supposed  to  be  a  newspaper  version.)   This 

note,  it  is  stated  by  the  British  government,  was  received  on 

May  10.    ( Vol.  /.,  p.  18.) 

Steamer  Perssia  left  New  York  for  England  with  the  New  York 

1861,  April  tb.  i       i.1       i      1     i 

papers  up  to  that  date. 
President  Lincoln's  second  proclamation  of  blockade  was  issued  ex- 
tending the  blockade  to  Virginia  and  North  Carolina.    (Stat. 

1861,  April  2?.  ,     T         '^  J       lo  -IO-n\  ^ 

ot  Large,  vol.  12,  p.  12o9.) 
Lord  Lyons  communicates  to  his  government  a  copy  of  Mr.  Seward's 
note  of  same  date,  covering  a  printed  copy  of  the  pro(!lamatiou 
of  the  19th  of  April.    {Received  at  British  Foreign  Office  May 
14.)     (  Vol.  I.,  p.  23.) 

18G1,  MHy  1.        Mr.  Adams,  United  States  minister,  left  Boston  for  his  post. 
Steamer  Canadian  arrived  at  Londonderry,  and  her  news  was  tele- 
graphed to  London.    The  Daily  News  of  May  2  contjiins  the 
1861,  M.,y  1.    f(^iiQ^i„g  paragraphs :  "  President  Lincoln  has  issued  a  procla- 
mation declaring  a  blockade  of  all  the  ports  in  the  seceded  States. 

'  ( )'  The  Federal  Grovernment  will  condemn  as  pirates  all  privateer 

vessels  which  may  be  seized  by  Federal  ships." 

The  steamer  Canadian  arrived  at  Liverpool  on  the  2d  of  May.  On 
1881,  M,.y  2.  the  3d  of  May  the  Daily  News  published  the  news  of  the  proc- 
1881,  M«y  3.  lamation  in  the  following  language,  which  was  repeated  ver- 
1801,  Mny  *.  batlui  lu  the  Times  of  the  4th  of  May,  and,  as  far  as  known,  no 
other  copy  was  ever  printed  in  the  English  journals: 

The  following  is  the  President's  proclamation  of  the  blockade  of  the 
southern  ports : 

An  in.sunection  against  the  Government  of  the  United  States  has  broken  out  in  (  :w 
States  of  South  Carolina,  Georgia,  Ahibama,  Florida,  Mississippi,  Louisiana,  and  Texas, 
and  the  law  of  the  United  States  cannot  be  executed  effectually  therein  conformably 
to  that  provision  of  the  Constitution  which  requires  duties  to  be  uniform  throughout 
the  United  States.  And  further,  a  combination  of  persons  engaged  in  such  insurrec- 
tion have  threatened  to  grant  pretended  letters  of  mtu'que  to  authorize  the  bearers 
thereof  to  commit  assaults  on  the  lives,  vessels,  and  property  of  good  citiz(*ns  of  the 
country  lawfully  engaged  in  commerce  on  the  high  seas,  and  iu  the  waters  of  the 
United  States;  and  whereasan  Executive  proclaniatiou  has  already  been  issued  requiring 
the  perscms  engaged  in  these  disorderly  proceedings  to  desist,  and  therefor  culling  out 
the  militia  force  for  the  purpose  of  repressing  the  same,  and  convening  Congress  in 
extraordinary  session  to  deliberate  and  determine  thereon  ;  the  President,  with  a  view 
to  the  same  purposes  before  mentioned,  and  to  the  protection  of  the  public  peace,  and 
the  lives  ami  property  of  its  orderly  citizens  pursuing  their  lawful  occupations,  until 
Congress  shall  have  assembled  and  deliberated  on  said  unlawful  proceedings,  or  until 
the  same  shall  have  ceased,  has  further  deemed  it  advisable  to  set  on  foot  a  blockade 
of  the  ports  within  the  States  aforesaid,  iu  pursuance  of  the  laws  of  the  United  States 


1 '  w-ii 


GENERAL    APPENDIX. 


321 


attacked 

iind  tele- 
h  of  that 
ril  in  case 

railroad, 
ixpensive 
'herald.) 
:)ii  papers 
Jaltiinore, 
t's  procla- 

hereafter 

5entatives 
resident's 

blockade 
on.)  This 
ceived  oq 

New  York 

issued  ex- 
la.    {Stat. 

Seward's 
(ilamatioii 
Office  May 

V  his  post. 

was  tele- 

[itains  the 

a  procla- 

d  States. 

privateer 

May.  Oq 
the  proc- 
ated  ver- 

£iiown,  no 

ade  of  the 

II  out  In  1  -^ 
,  and  Toxns, 
onformably 
throufjhoiit 
sh  insiirrec- 
tlie  bearers 
ziiiis  of  tlie 
iters  of  the 
3(1  requiring 
ciilliiiji  out 
Congress  iu 
vith  a  view 
peace,  and 
,tiou8,  until 
gs,  or  until 
a  blockade 
litod  States 


and  the  laws  of  nations  in  such  cases  provided.  For  tl'is  purpose  a  roinpctont  t'orco 
will  be  ]»osted  so  as  to  prcvtMit  tlu^  entrance  and  exit  of  vessels  from  Mic  ]»(>rts  iifore- 
said.  If,  therefore,  witli  a  view  to  violate  siu^h  blockade,  any  vess(d  shall  attiMiipt  to 
leave  any  of  the  said  ports,  she  will  bcj  duly  warned  by  the  (iitniinander  of  one  of  said 
blockading  vessels,  who  will  indorse  on  Ium'  register  the  fact  and  datiMif  such  warning, 
and  if  the  same  vessel  shall  again  attempt  toenti^r  or  leave  a  blocka<le  port,  she  will  l>e 
captured  and  sent  to  the  nearest  convenient  port,  for  such  proceedings  against  her  and 
her  cargo  as  may  bo  deemed  advisable. 

A  reference  to  the  proclamation,  as  correctly  given  above,  will  show 
that  tliere  were  many  variations  from  the  ori{j;inal;  tlie  most  impoitant 
of  which  were  the  omission  of  the  fori'.al  parts  of  the  i>roclamation ;  of 
the  worda  "  for  the  collection  of  the  revenue ;"  and  of  the  declarations 
as  to  piracy. 
May  2,  1801,  Lord  Lyons  wrote  to  Lord  Russell  as  follows:  w-i  ^t.-.-j^ 

I  have  the  honor  to  inclose  a  copy  of  a  note  by  which  I  acknowledged  thii  receipt  of 
Mr.  Seward's  note  of  the  '27th  ultimo,  announcing  the  intention  of  this  Government  to 
set  on  toot  a  blockadfs  of  the  southern  ports.  I  was  careful  to  so  word  iny  noti;  as  to 
show  that  I  accepted  Mr.  Seward's  communication  as  an  aunoiineemeiit  of  an  inteiitii.ii 
to  set  on  foot  a  blockade,  not  as  a  notification  of  the  actual  coinmeucemout  of  one.  I 
believe  that  most  of  my  colleagues  made  answers  to  the  same  sense. 

I  have  the  honor  to  transmit  to  your  lordship  copies  of  the  President's  pnxdamatioii 
announcing  the  extension  of  the  blockade  to  the  pcu'ts  of  Virginia  and  North  Carolina, 
which  have  been  sent  to  mo  in  a  blank  cover  from  the  State  Department.  (,  I'ol,  I, p. 
24.) 

Inclosnre,  Lord  Lyons  to  Mr.  Seward,  April  2!),  1801 : 

The  undersigned,  Her  Hritannic  Majesty's  envoy  extracu'dinary  and  minister  pleni- 
pot(!ntiary  to  tlie  United  States  of  America,  has  the  honor  to  acknowledge  tin;  reccipr 
of  a  note  of  the  day  before  yesterday's  <late  from  the  Secretary  of  State,  eommunieat- 
iiig  to  him  a  proclamation  which  announces,  among  other  things,  that  a  blockade  of 
the  ports  of  South  Carolina,  Georgia,  Alabama,  Florida,  ^lississippi,  Louisiana,  and 
Texas  will  be  set  on  foot,  in  pursuance  of  the  law  of  the  I'liited  States  ami  tiie  law  of 
nations,  and  that  for  this  purpose  a  competent  force  will  be  posted  so  as  to  prevent 
the  (mtrance  and  exit  of  vessels.     (  Fol,  I,  p.  25.) 

The  Secretary  of  State  has,  moreover,  done  tin;  undersigned  the  honor  to  inform  him 
in  the  same  note  that  it  is  intended  to  set  on  foot  also  a  blockade  of  the  ports  of  Vir- 
ginia and  North  Carolina. 

In  the  House  of  Commons  Mr.  Ewart  asked  l^ord  Russell  whether  the  gov- 
ernment intended  to  place  the  British  naval  force  in  the  Gulf  of  Mexico  on  '*'"  ^ 
sufflcieiit  footing,  and  if  privateers  sailing  under  Hag  of  recoguized  power  would  be 
treated  as  pirates. 

Lord  Russell  replied  that  "  Her  Majesty's  government  heard  the  other  day  that  the 
Confederate  States  have  issued  letters  of  inanpie,  and  to-day  wo  have  heard  that  it  is 
intended  there  shall  bo  a  blockade  of  all  the  ports  of  the  Southern  States ;"  and  after 
stating  that  some  of  the  questions  had  been  submitted  to  thelaw-otHcersof  the  Crown, 
he  said:  "  We  have  not  been  involved  iu  any  way  in  that  contest,  by  any  act  or  giving 
anv  advice  in  the  matter,  and,  for  God's  sake,  lot  us,  if  possible,  keep  out  of  it."  ( I'ol 
l\,p.  482.) 

Steamship  Persia,  from  New  York,  arrived  at  Queeustown.  h„i  m,v  t. 

Steamship  Persia  arrrived  at  Liverpool.  m,,  .,. 

House  of  Commons,  Mr.  Gregory  asked  Lord  Russell  the  following  (lues- 
tioii:  "  M.  The  Government  of  the  United  States  having  refused  to  relin-  mivo. 

(juisli  the  b.dligerent  right  of  issuing_letters  of  inar([ne,  the  seven  Southern 
confederated  and  sovereign  States  having  become  to  the  United  States  a  separate  and 
independent  and  foreign  power,  whether  Her  Majesty's  government  recognize  the  right 
of  the  president  of  tlio  southern  confederacy  to  issue  letters  of  maniue ;  ami  it  so, 
whether  our  minister  at  NVashington  has  been  notitied  to  that  ellect?"  (Vol.  11',  p. 
482.) 

Lord  Russell,  in  reply,  stated  that,  with  respect  to  belligerent  rights  in  the  case  of 
certain  portions  of  a  State  being  in  insurrection,  there  was  a  preceilent  whicii  seems 
applicable  to  this  purpose  in  the  year  182.").  The  British  government  at  that  time  al- 
lowed the  belligerent  rights  of  the  provisional  government  of  Greece,  and,  in  conse- 
quence of  that  allowanc,  the  Turkish  government  made  a  remonstrance.  I  may  state  the 
nature  of  that  remonstrance  and  the  reply  of  Mr.  Canning.  "  The  Turkish  government 
complained  that  the  British  government  allowed  to  the  Greeks  a  belligerent  character, 
and  observed  that  it  appeared  to  forget  that  to  subjects  iu  rebellion  no  national  charaeter 
could  properlv  belong.''  But  the  British  govorumont  informed  Mr.  Stratford  Canning 
21  H 


'■■m 


vl  ■■! 


m 


322 


GENERAL    APPENDIX. 


I 


tliat  the  "  character  of  belligerency  was  not  so  much  a  principle  as  a  fact ;  that  a  cer- 
tain (leKi'eeof  force  and  consistency  acquired  by  any  niaHS  of  population  enyajjed  in  war 
entitle*!  that  population  to  be  treated  an  a  bellifforent,  and  even  if  their  title  were  ques- 
tionable,  rendered  it  the  intercut,  well  understood,  of  all  civilized  nations  so  to  treat 
them.  For  what  was  the  alternative  ?  A  power  or  a  community  (call  it  which  you 
will)  which  was  at  war  witli  another,  and  which  covered  the  sea  witli  its  cruisers,  must 
either  ha  acknowledged  as  a  belligerent  or  dealt  with  as  a  pirate;"  which  latter  charac- 
ter, as  applied  to  the  Greeks,  was  loudly  disclaimed.  In  a  separate  dispatch  of  the 
same  date,  (12tli  of  October,  IH^f),)  Sir  Stratford  Canning  was  reminded  that  when  the 
British  government  acknowledged  the  right  of  either  belligerent  to  visit  and  detain 
British  merchant-vessels  having  enemy's  property  on  board,  and  to  ccmfiscate  such 
pro])erty,  it  was  necessarily  implied,  as  a  condition  of  such  acknowledgment,  that  the 
detention  was  for  the  purpose  of  bringing  the  vessels  detained  bufore  an  established 
court  of  prize,  and  that  confiscation  did  not  take  place  until  after  coi  demnatiun  by 
such  competent  tribunal.  The  (juestion  has  been  under  the  consideration  of  the  gov- 
ernment. They  have  consulted  the  law-otHcers  of  the  Crown.  The  attorney  and  so- 
licitor-general and  the  Queen's  advocate,  and  the  government  have  come  to  tlie 
opinion  that  the  southern  confederacy  of  America,  according  to  those  principles,  Avhicli 
seem  to  them  to  be  just  principles,  must  be  treated  as  a  belligerent."  ( Vol.  IF,  p.  4^3.) 
House  of  Commons — belligerent  rights  at  sea. — Question  tiiereupon  by  Mr.  Wali)olo, 
who  consulted  the  government  as  to  its  introduction.  Viscount  Palmers- 
1961,  May  7.  tou,  ill  reply,  stated  that  "  the  house  will  bear  in  mind  that  my  noble  friend 
(Lord  John  Russell)  stated  last  evening  that  this  question  of  international 
rights,  as  connected  with  belligerent  rights  at  sea,  is  of  grave  and  complicated  charac- 
ter; that  it  is  under  the  consideriition  of  the  government,  and  until  the  government 
siiall  be  in  a  condition,  after  consulting  its  legal  advisers,  to  make  some  distincit  com- 
munication upon  tlie  subject,  it  would  be  inexpedient,  and  indeed  impossible,  for  them 
to  enter  into  any  discussion  upon  the  matter."     (  Vol.  IV, p.  484.) 

House  of  Couimons — as  to  privateering?. — Mr.  Forater  inquired  as  to 
status  of  Jiritish  subjects  serving  on,  or  assisting  in  equipment 
of  |)rivateer  for  rebels,  and  whether  such  privateer  is  to  be 

subj(;ct  to  forft'iture.     Inquiry  was  made  of  secretary  of  state  of  home 

department.    The  reply  was  as  follows : 

"  Sir  Gkohgk  Lewis  :  Sir  it  is  in  the  contemplation  of  Her  Mnjosty's  government  to 
issue  a  proclamation  for  the  purpose  of  cautioning  all  Her  Majesty's  sulijects  against 
any  interference  in  the  hostilities  between  the  Northern  and  Southern  States  of  Amer- 
ica. In  that  proclamation  the  general  t^ll'ect  of  the  common  and  statute  law  on  the 
matter  will  be  stated."    (  Vol.  IV,  p.  48 1.) 


1S6I,  May  9. 


1861,  Mrj-  10. 


MaerlO. 


Receipt  by  British  government  of  Lord  Lyons's  note  of  April 
22,  inclosing  unoiticial  newspaper  copy  of  blockade  proclama- 
tion of  19th  of  April. 

House  of  Lords — question:  United Statesj  civil  war;  priva- 
teering. 
Earl  Derby  said : 

I  un<lerstand  that  a  proclamation  is  about  to  be  issued  by  Her  Majesty's  government 
on  the  subject  of  privateering  and  of  belligerent  rights.  I  hope  that  in  tiiat  proclama- 
tion, or  in  some  other  way,  a  most  distinct  and  emphatic  warning  will  be  given  to  all 
seamen  in  the  service  of  Her  Majesty  as  to  tlio  conditions  upon  which  they  will  en- 
gage— if  they  choose  to  enter  upon  such  hazardous  enterprise — in  the  system  of  priva- 
teering. There  should  be  no  doubt  left  on  tlieir  minds,  but  the  fullest  and  plainest  in- 
timation should  be  publicly  made  to  tlieni,  whether,  if  th(!y  do  engage  iu  such  a  service, 
they  will  or  will  not  iu  extremity  be  entitled  to  expect  any  protection  or  interferpiicc 
on  the  part  of  this  country.  I  hope, my  noble  friend  will  state  to  your  lordships 
whether  the  government  have  come  to  any  conclusion  upon  this  question ;  ami  if  so, 
whether  they  are  prepared  forthwith  to  issue  a  public  and  emphatic  notification  of  the 
course  they  intend  to  pursue,  and  the  consequences  likely  to  result  to  British  seamen 
from  a  disregard  of  their  warning. 

Earl  Gkanvillk.  The  noble  earl,  by  the  manner  in  which  he  has  approached  +lio 
subject,  has  evinced  a  becoming  appreciation  of  the  diflttculties  which  may  ari.se  to  our- 
selves from  the  unfortunate  state  of  things  in  the  United  State.  With  r<!spect,  how- 
ever, to  the  question  of  the  belligerent  rijihts  of  the  parties  now  engaged  in  that  un- 
happy contest,  the  noble  earl  has  not  asked  for  any  expression  of  opinion  on  tlie  part 
of  tlie  government,  and  therefore  I  am  absolved  from  entering  into  a  discussion  of  that 
most  important,  difilcult,  and  delicate  subject.    But  the  noble  earl  has  inquired  whether 


it. ;  that  a  cer- 
iiKiiK«<l  in  war 
itle  were  <iue8- 
18  so  to  tieiit 
it  which  you 
crniHors,  iiiiiHt 
1  latter  charac- 
ispatch  of  the 
;hat  when  the 
(it  and  detain 
(mfiscate  such 
neiit,  that  the 
in  estuhli.shed 
deni  nation  by 
>u  of  the  gov- 
torney  and  so- 
come  to  tlie 
nciph^H,  which 
o/./r,;>.4S3.) 
y  Mr.  Walpole, 
ouut  Palniers- 
ly  noble  friend 
international 
icated  charac- 
)  government 
distinct  com- 
sible,  for  them 

iiirert  .ia  to 
1  equipment 
er  is  to  be 
ite  of  liouie 


govcmment  to 
bji'cts  against 
tates  of  Aiuer- 
to  law  on  the 


ote  of  April 
e  proclaina- 

warj  piiva- 


'8  government 
;hat  proclama- 
l)e  given  to  all 
1  they  will  en- 
stem  of  priva- 
iid  plainest  iu- 
snc-h  a  service, 
>r  intcrfcfrenco 
our  lordsliips 
on  ;  and  if  so, 
fication  of  the 
Sritisli  seamen 

[>proached  +ho 
ly  arise  to  onr- 
njspect,  bow- 
ed in  that  un- 
<n  on  tlie  part 
cussion  of  that 
uired  whether 


GENERAL   APPENDIX. 


323 


18A1,  MnrU. 


1861,  May  13. 


May  14. 


1461,  Mny  14. 


iwil,  Mny  17. 


|t  is  onr  intention  to  issue  a  proclamation,  warning  the  subjects  of  Her. Majesty  against 
In  any  manner  de))artiiig  from  tliat  neutrality  which  Her  Majesty  herself  is  so  desirous 
to  observe.  To  that  question,  as  the  noble  earl  has  stated,  an  answer  has  already  been 
given  in  "  another  place,"  namely,  that  it  is  the  intention  of  the  government,  according 
to  j>recedent,  to  issue  a  proclamation,  giving  such  warning  to  all  tiie  sul)ji'cts  of  Her 
Majesty.  The  ])r«fciso  wording  of  the  proclamation  is  a  matter  of  considcialde  impor- 
tance and  dilHculty,  requiring  some  deliberation,  and  we  have  thought  it  right  to  ob- 
tain the  best  advice  in  framing  it;  hut  I  may  state  that  the  govornment  are  anxious 
to  make  it  us  plain  and  emphatic  as  possible.    (  Vol.  IV,  p.  4Hr>.) 

The  British  government  allege  that  Mr.  Dallas  handed  to  the 
minister  of  foreign  affairs  the  Department  of  State  circular  of 
April  20,  and  its  accompanying  copy  of  the  proclamation  of  the  block- 
ade of  Southern  jjorts.  There  is  no  evidence  of  this  fact  in  the  Depart- 
ment of  State. 

Queen's  proclamation  of  neutrality  a(!Cording  belligerent 
rights  to  South.    ( Vol.  I,  Claims,  tfcc,  p.  41.) 

In  the  evening  Mr.  Adams  arrived  in  London.  M«y  13. 

On  the  morning  of  this  day  Mr.  Adams  was  ready  for  busi- 
ness.   The  Queen's  proclamation  was  issued  without  consulta- 
tion with  the  United  States  minister,  even  before  it  was  practicable  for 
Lord  Russell  to  see  him. 

Receipt  by  British  Foreign  Office  of  official  copy  of  President 
Lincoln's  proclamation  of  April  19,  with  Lord  Lyons's  note  of 
Aj)ril  21. 

Receipt  of  Lord  Lyons's  note  of  May  2,  communicating  ofticir.l 
copy  of  second  proclamation  of  blockade,  dated  Ai)ril  27,  and  extending 
blockade  to  [lorts  of  Virginia  and  North  Carolina. 

Mr.  Adams's  note  to  Mr.  Seward  giving  an  account  of  an  in-        M,y  \?. 
terview  with  Lord  Russell,  in  which  he  said  to  Lord  Russell : 

I  must  be  permitted  to  expi'ess  the  great  regret  I  had  felt  on  learning  tin-  decision  to 
issue  the  Queen's  proclamation,  which  at  once  raised  tlie  insurgents  to  tlic  level  nt'  a 
bellig(!reiit  state,  and  still  more  the  language  used  in  regard  to  it  l)y  llir  Majesty's 
ministers  in  botii  houses  of  Parliament  before  and  since.  VViiatever  iniglir,  be  the 
design,  there  could  be  no  shadow  of  doubt  that  tlie  etl'ect  of  these  events  liad  Iteeu  to 
encourage  tlie  friends  of  the  disatiected  here.  The  tone  of  the  press  and  if  private 
opinion  indicated  it  strongly.  I  then  alluded  more  especially  to  the  brief  report  of 
the  lord  chancellor's  speech  on  Tiiursday  last,  in  wliicli  he  Iiud  characterized  the  rebel- 
lious portion  of  my  country  as  a  belligerent  state,  and  the  war  that  was  going  on  as 
jiistiim  bellum. 

To  this  his  lordship  replied  that  he  thought  more  stress  was  laid  upon  tlujso  i'vents 
than  th(;y  deserved.  The  fact  was  that  a  imcessity  seemed  to  exist  to  delino  the 
course  of  the  government  in  regard  to  the  participation  of  the  sul)jects  of  Oreat  Britain 
in  the  iiniiending  conflict.  To  that  end,  the  legal  (|iu'slions  involv«'d  had  been  referred 
to  those  othcers  most  conversant  with  them,  and  their  advice  had  been  taken  in  shaj)- 
iiig  the  result.  Tlieir  conclusion  had  been  that,  as  a  (|uestion  merely  of  fact,  a  war 
existed.  A  considerable  number  of  the  States,  at  least  seven,  oc^cupying  a  widts  extent 
of  country,  were  in  open  resistance,  while  one  or  more  of  the  others  were  associating 
themselves  in  the  same  struggle,  and  as  yet  tliere  were  no  indications  of  any  other  re- 
sult than  a  ci>nte8t  of  arms  more  or  less  severe.  In  many  preceding  cases  much  less 
formidable  demonstrations  had  been  recognized.  Under  such  circunistancts  it  seemed 
scarcely  possible  to  avoid  speaking  of  tliis  in  tlio  technical  sense  iMjuntitm  hdlum,  that 
is,  a  war  of  two  sides,  without  in  any  way  applying  an  opinion  of  its  justice,  as  well 
as  to  withhold  an  endeavor,  so  far  as  possible,  to  bring  tlie  inanagenuMit  of  it  within 
the  rules  of  modern  civilized  warfare.  This  was  all  that  was  contemplated  by  the 
Queen's  proclamation.  It  was  designed  to  show  the  jmrixirt  of  existing  laws,  and  to 
explain  to  British  subjects  their  liabilities  in  case  they  should  engage  in  the  war.  And 
however  strongly  the  people  of  the  United  States  might  feel  against  their  (Micinies,  it 
was  hardly  to  be  supposed  that  in  practice  they  would  now  vary  from  tlieir  uniformly 
humane  policy  heretofore  in  endeavoring  to  assuage  and  mitigate  the  honors  of  war. 

To  all  which  I  answered  that  under  other  circnnistances  I  should  be  very  ready  to, 
give  my  cheerful  assent  to  this  view  of  his  lordship's;  but  I  must  be  porniiltcd  frankly 
to  remark  that  the  action  taken  seemed,  at  least  to  my  mind,  a  little  more  r.ipid  than 
was  absolutely  called  for  by  the  occasion.  It  might  be  recollected  that  the  new  ad- 
ministration liiid  scarcely  had  sixty  days  to  develop  its  jiolicy ;  that  the  extent  to  whieL 


■'S 


324 


GENERAL   APPENDIX. 


«  * 


ill!  (Icpiirtiiicnts  of  tlio  GoveniiiuMit  liiul  hcon  di^nioralizod  in  tlin  urt'ccding  adiiiiniH- 
triifion  wjissmcly  iindcrstoiHl  licro,  at  It;ast  in  part  ;  that  tll(^  very  <>r;;aiii/,afi()ii  upon 
wliicli  any  fntum  a(!ti(>n  was  to  lin  pi't'difatt'd  was  to  Ix-  renovated  and  piirilied  lici'oro 
a  ii:;-'  conld  lie  entertained  oC  enerj^t^tic!  and  elt'eetive  lalior.  'I'iie  eonse(|nenee  iiad 
lieeii  tliat  it  was  l»nt  Jnst  einer^iin^  frcnn  its  dil'tienities,  and  liejiimiin^;  to  develop  the 
])o\v<'i- of  tlu!  country  to  eope  with  tliis  reliellion,  wlien  tin'  Uritisli  ^^overnnn-nl  tooli 
tlie  initiativi^  and  decided  praetieaily  tiiat  it  is  a  strnj;;;;le  of  two  sides;  and,  Inrlliin-- 
nnire,  it  itron<nineed  tlu'  insnr;;ents  to  l»e  a  liellij;('rent  state  l)efor(!  tliey  liad  ever 
sliown  fiu'ir  capacity  to  nniintaiii  any  l<iii(l  (d'  warfare  wlnitever,  except  witiiin  on*-  of 
tin-ir  own  liarbors  and  under  every  possililt!  advantaj^e.  It  considered  iIkii.i  a  niarun! 
jtower  I'efore  tiniy  Innl  ever  exidldted  a  sin;f!e  jtrivateer  on  tlie  ocjean.  I  said  tlnit  I 
was  not  aware  tliat  a  Hiiii;l(!  arnu'd  vessel  Inul  yet  been  issued  from  any  port  nntler  tlie 
control  of  tbese  people.    (Vol.  I,  p.  IH'.\.) 

wn, jumn.        Mr.  Sewjird  wrote  to  Mr.  Adams  : 

Every  instruction  yon  llav(^  received  from  this  Department  is  full  of  evidence  of  tlio 
fact  tlnit  tlie  principal  dani;er  in  tiie  present  insurrection  winch  the  I'rcNsulent  has 
appreh(^nd(!d  is  that  »)f  forei<^n  intervention,  aid,  or  sympatliy ;  and  especially  of  such 
intervention,  aid,  or  symitatliy  on  tlie  jtart  of  the  j;ove.innient  of  (Jreat  Hiitain. 

The  Justice  of  this  apprehension  has  been  vindicated  by  tlio  followiiif^  facts,  namely: 
Tlu!  issue  of  the  Queen's  proclamation,  remarkable,  first,  for  the  circumstances  under 
which  it  was  made,  namely,  on  the  very  <lay  of  your  arrival  in  London,  which  had 
lieen  anticipated  s<i  far  as  to  jirovide  for  your  n-ccption  by  the  British  secretary,  but 
without  atfordiiif;-  you  the  interviiiw  inomised  before  any  decisive  action  should  bo 
adojitcd  ;  secondly,  the  teiiorof  the  proclamation  itself,  wliicli  seems  to  reco^fnize,  in  a 
vaj^ne  manner,  iiuleud,  but  still  does  seem  to  reeo;;iiizo,  the  insnr<r».'nrs  as  a  hvlliiit'i'citt 
nati(mal  poiirr.  That  proclamation,  unmoditied  and  unexpIaimMl,  would  leave  us  no 
alt(a'iialiv(!  but  to  regard  the  ^ioverninent  of  (ireat  Hritain  as  (luestioniuj;-  our  free  exer- 
cise of  all  the  lifrhts  of  sell'-ddense  jfuaranteed  to  us  by  our  Constitution  and  the  laws 
of  nature  and  of  nations,  to  suppress  the  insurrection.     (V^ol.  I,  p.  l.Kj.) 

.in„.  X.  Mr.  Suwaid  again  wrote  to  Mr.  Adams,  June  8,  ISOl : 

Your  conversation  with  tiie  British  se(;retary  iiieidtnitally  br(Uii;ht  iiit)  debate  the 
Queen's  late  proclamation,  (whicli  seiMiis  to  lis  (l<'sijrii,.(l  tj)  raise  tlie  insurf^euts  to  the 
level  of  a  bellij;erent  state,)  tlie  lanf;uat;(!  emiiloycd  by  Her  ilaj(.'sty's  ininist(;rs  in  both 
houses  of  I'arliaiiient,  the  tone  t)f  the  public  press  anil  of  [irivate  oiiiiiion,  and  especially 
a  speech  of  the  lord  chancellor,  in  whici'  he  had  characterized  the  insnr<^ents  as  a  bel- 
lijferent  state,  and  the  civil  war  which  they  are  waginjj  against  the  United  States  as 
jimtiim  hi'Uiim. 

The  opinions  which  you  oxi)res8ed  on  these  matters,  and  their  obvious  tendency  to 
encourage  the  insurrection  and  lo  protract  and  aggravate  tlie  civil  war,  are  just,  and 
meet  our  approbation.  At  the  same  tinn!  it  is  the  purpose  of  this  Government,  if  pos- 
sible, consistently  with  the  national  welfare  anil  honor,  to  have  no  serious  controversy 
with  Great  Britain  at  all ;  and  if  this  shall  ultimately  prove  impossible,  then  to  have 
both  the  defensive  position  and  the  clear  right  m  our  side.  With  this  view,  this  Gov- 
ernment, as  you  are  made  aware  by  my  disjjat  j1i  No.  10,  has  determined  to  pass  over 
witliontoliicial  complaint  the  publications  of  the  British  press,  manifestatiims  of  adverse 
individual  opinion  in  social  life,  and  the  s[)(H!clies  of  British  statesmen,  and  even  those 
of  Her  ilajesty's  ministers  in  l'arliament,so  long  as  they  are  not  authoritatively  a<lopted 
hy  Her  Majesty's  government.  We  honor  and  respect  the  frisedom  of  debate  and  the 
freedom  of  the  press.  We  indulge  no  apprehiMisious  of  danger  to onr  rights  and  inter- 
ests from  any  discussion  to  wliiidi  they  may  be  subjected,  in  either  form,  in  aiij'  place. 
Sure  as  we  are  that  the  transaction  now  going  on  in  our  country  involves  the  progress 
of  civilization  and  humanity,  and  ecpially  sure  that  our  attitude  in  it  is  right,  and  no 
hiss  sure  that  our  press  and  our  statesmen  are  equal  in  ability  and  influence  to  any  in 
Europe,  we  shall  have  no  cause  to  grieve  if  Gri^at  Ihituin  shall  leave  to  us  the  defense 
of  the  independence  of  nations  and  the  rights  of  human  nature.    (Vol.  I,  p.  195.) 

j.meu.  Mr.  Adams  wrote  to  Mr.  Seward,  June  14,  18G1  : 

I  next  approached  the  most  delicate  portion  of  my  task.  I  descanted  upon  the  irri- 
tation produced  in  An;erica  by  the  Queen's  proelamatiou,  upon  theconstrnction  almost 
universally  given  to  it,  as  designed  to  aid  the  insurgents  by  raising  them  to  the  rank 
of  a  belligerent  state,  and  upon  the  very  decided  tone  taken  by  the  President  in  my 
dispatches  in  case  any  such  design  was  reaily  entertained.  I  added  that  from  my  own 
observation  of  what  had  since  occurred  here.  I  had  not  been  able  to  convince  myself  of 
the  existence  of  such  a  design.     (Vol.  I,  p.  198.) 

i«(»,jur.e2.        Earl  Russell  wrote  to  Sir  F.  Bruce,  June  2,  18(55  : 

I  received,  on  the  2r)th  ultimo,  your  dispatch  of  the  lOtb  ultimo,  inclosing  a  copy, 
taken  from  a  newspa^>er,  of  a  proclamation  issued   by  the  Presuieu;  of  the  Uuitud 


GENERAL    APPENDIX. 


325 


njT  adniinls- 
/,;irii)ii  ii|iiiii 
litird  licidrt) 

((III'.IICV     lliltl 

(It'vcldp  Mil) 
'iiiiicnt  tiMik 
iiid,  riirtli(!r- 
icy  liiid  i'vvr 
vithiii  (Ml''  of 
iM.i  a  lUiirtiii; 
I  Hiiid  tliat  I 
lit  uiulcr  tlie 


donee  of  tlio 
'nvsidi'iit  has 
ially  of  siicU 
I'itaiii. 

acts,  iianioly : 
taiicos  iiiidtT 
II,  wliicli  Inid 
i((M't'tary,  but 
ion  should  bo 
juojiiiizc,  in  a 
18  a  InUitjen-nt 
d  Uavt!  ns  no 
olir  free  cxiT- 
and  the  hiws 

SOI  : 

b )  (hihato  the 
ii'^onts  to  the 
listi.Ts  in  both 
ind  especially 
fonts  as  a  bel- 
ited  States  as 

8  tendency  to 
,  are  jnsf,  and 
nnieiit,  if  pos- 
is  controversy 
,  then  to  have 
iow,  this  Gov- 
1  to  pass  over 
ons of adverse 
n<l  even  those 
rively  adopted 
ebate  and  the 
;hts  and  inter- 
in  any  place. 
s  the  proii;ress 
i  right,  and  no 
>nce  to  any  in 
ns  the  defense 
I,  p.  19 J.) 

npon  the  irri- 
rnetion  almost 
iin  to  the  rank 
esident  in  my 
■j  from  my  own 
'iuce  myself  of 


ilosing  a  copy, 
of  the  Uuitttd 


States  on  that  day,  declaring,  anionjy  other  nrntters,  <hat  "arniod  resistance  to  tlit^ 
authority  of  this  (iovcninieiit,"  luinnly,  the  ({o\  eminent  of  the  IJiited  Stati-s,  "may 
1)(^  iiHtirdi'd  as  virtually  at  an  end;  and  tht^  persons  by  whom  tiiat  rt-sistaiife,  as  well 
as  the  opeiiit  ions  of  iusur^jiMit  eruiscrs,  were  ilireeted,  are  fu;jitives  or  eapli\e,s." 

On  the  day  loUowinj;  the  receipt  of  your  dispatch  intelliy;eiice  reached  this  country 
of  tli(^  ca|ttureof  President  Davis  by  the  military  forces  of  the  llniti'd  States. 

In  this  Htat<' of  things  Her  Majesty's  ;;i)veiiinieiit  lost  no  time  in  comninnic  atinij  with 
the  ijoveriinient  of  the  Em)ieror  of  the  l''rencli  as  to  the  course  which  should  be  ]inr- 
8Ued  by  the  two  governments  ;  and  while  these  cominunicatioiis  were  in  progress  1 
received  otlieially  from  Mr.  Adams,  on  the  ;{(tth  ultimo,  a  copy  of  the  I'resideiit's  ]trocla- 
luation  of  the  Kith. 

It  w(Mild  indeed  have  been  more  satisfactory  if  the  Government  of  the  United  States 
had  acconiiianied  the  communication  of  the  President's  itroclaniiition  with  a  dei'lara- 
ti(»n  that  they  formally  rtMionnced  the  exercise  as  rc<;ards  neutrals  of  the  rif^hts  of  a 
l»elliy;eient  ;  but  Her  Majesty's  f^overnment  considered  that,  in  tlm  existiiijj  postiiri;  of 
ntfairs,  tlie  delay  of  any  formal  renunciation  to  that  effect  did  not  ailbrd  to  ncntral 
jiowers  siilhcieiit  warrant  for  coiit  inning  to  admit  the  iiossession  of  a  bcllif^ercnt  char- 
acter by  a  couffdeialion  of  States  which  had  been  actually  dissolved.  Tln'  late  presi- 
dent of  the  so-called  Confederate  States  has  been  captured,  and  transported  as  a  priso- 
ner to  Fort  Monnu^ ;  the  armies  hitherto  kept  in  the  lield  by  the  Confederate  States 
have,  for  the  most  part,  surrendered  or  dispersed  ;  and  to  continue  to  recMif^nize  those 
States  as  bellijfcreiirs  would  not  only  hv.  inconsistent  with  the  actual  condition  of 
affairs,  but  mij;htleadto  much  embarrassment  and  comjilication  in  the  relations  be- 
tween neutral  powers  and  the  (iovernment  of  the  United  States. 

Her  Majesty's  ^fovcrnmenl  have,  accordinj^ly,  after  cominuni(!ation  with  the  j^overn- 
inent  of  tlie  Emperor  of  tlm  French,  determined  to  consider  the  war  which  has  lately 
l>revailed  between  the  Unitiid  States  and  the  so-called  Confederate  States  of  North 
America  to  have  ceased  dv  fado  ;  and  on  that  jrronnd,  tlit^y  recof^nize  the  re-establish- 
ment of  j)eac(!  within  the  whole  territory  of  which  the  United  States,  before  the  com- 
liienceiuent  of  the  civil  war,  were  in  undisturbed  possession.     (Vol.  I,  p.  320.) 

From  the  time  when  the  i)rocl.aiiiiiti()n  of  neutrality  was  issued  until 
the  withdrawal  of  the  eoiicession  of  l)ellifj:erent  ri,jj;hts  to  tlie  rebels,  the 
United  States  Government  were  constantly  nialving  representations  to 
the  British  government  on  this  subject.  These  rei)resentations  will  be 
found  runnino-  through  the  whole  correspondence  on  the  subject,  as 
printed  in  the  volumes  of  Claim.s. 

The  rights  conceded  to  the  rebels  were  partially  withdrawn  June  2, 
180.J,  (To/.  7,  Claims,  page  378,)  and  tinally  withdrawn  October  13, 18G5. 
Vol.  I,  Claims,  page  387.) 

The  following  extract  from  a  letter  from  George  Bemis,  esq.,  to  the 
Secretary  of  State,  dated  Kome,  April  20,  1870,  directs  attention  to 
some  of  the  more  important  parts  of  the  correspondence  contained  in  the 
volumes  entitled  "  Claims  against  Great  Britain,"  and  to  some  import- 
ant correspondence  not  contained  in  that  compilation.  This  letter  was 
written  after  the  receipt  of  the  second  volume,  which  fact  explains  some 
apparent  mistak<?s  of  the  writer : 

I  befj;  to  call  the  notice  of  the  Department  to  tiie  grave  and  fundamental  omhuions, 
misarnin{iemvn1ii,and  misdcuiynutionn,  contained  in  the  Conqntation  ax  than  far  exivnlvd.  It 
is  principally  in  reference  to  these  that  1  have  hoped  to  make  my  coninuinication  of 
some  service  to  the  undertakinj^  for  the  future. 

I  must  premise  that  I  do  not  profess  even  now  to  jjive  a  full  a'  .1  "iiable  inventory 
of  what  must  be;  supplied  or  explained,  but  only  to  snyj;est  such  deliciencies  as  liav(i 
thus  far  met  my  eye,  or  of  which  I  have  the  means  at  hand  of  inquiring  into.  Thus  I 
beg  to  particularize  that  I  have  little  or  no  opportunity  here,  from  my  own  memoran- 
da, to  inqniiti  into  the  care  or  completene.-.s  with  which  the  mannxcri/tt  (hith- 
erto iinpHhlinhvd)  dispatches  of  the  Department  which  1  had  left  marked  for  publi- 
cation have  been  copied  and  printed.  The  Secretary  may  be  aware  that  I  gave  a 
winter's  work  to  that  task,  leaving  in  paiier-marks  and  pencil  annotations  in  the  man- 
uscript volumes  of  the  archives,  to  facilitate  future  reference  to  documents  and  parts 
of  documents  to  be  extracted.  I  desire,  therefore,  to  be  explicitly  understood  as  ex- 
cluding all  that  portiou  of  the  work  from  criticism.  I  would  only  remark  in  passing, 
however,  that  I  think,  from  some  nienioranda  which  I  have  preserved,  that  1  must  h.ivo 
marked  in  for  publication  (at  least)  one  of  Mr.  Adams's  manuscript  dispatches,  Xo.  125, 
Adams   to  Seward,  August  8,  IdOl,  (iu  which  he  speaks  of  the  British  govenimeut 


i    :i 


ei. 


.;!■ 


326 


GENERAL   APPENDIX. 


m 


rJ!  ill: 


ii  ! 


il 


J 


1  ( - 

I' 


Deb.,  vol.  Ifiii,  piifjH  ir)»54.)     I   <l<>  nut 
inpiler,  but  to  rank  it  ainon^  "  DcbnteH  " 


rogai'diiiK  tho  noparation  of  th«  Union  as  a  fixod  faol,)  and  the  Qurfii'mtpvich  of  proroijn- 
tUtn  of  I'urlidnient  of  AutjUHt  (5,  18(51,  in  wliicili  lier  MritiHli  Majesty  nays — roiteratin^j 
and  pcisiMtiny  in  bolligoront  recojjnition,  wlien  Mr.  S»nvard  had  n'|indiattHl  Hncli  a 
conHtruotinn,  tivon  ho  lato  an  An^HHt  4,  IHfilt,  (Seward  to  Lijonn,  Amimt  4,  lrt(iU,  Ala- 
bama Coinpilation,  vol.  1,  p.  tiHH) — "Tlio  diHHtMiHionH  wliicli  anmo  Honut  niontliH  a^ro  in 
tilt)  United  StattiH  of  North  America  liave  unl'ortunat(>ly  aHHiuned  tho  character  of  open 
war.  Her  Majesty,  deeply  lamentin^^  thin  calamitons  re^nlt,  has  duterminiHl,  in  com- 
mon with  tho  other  powers  of  Europe,  to  preserve  a  strict  neutrality  between  tho  con- 
tending parties;"  two  docuniuuts  which  I  do  not  find  in  thu  Compilation,  and  which  I 
should  deem  important. 

But  of  tho  grave  and  fundamental  omissions  and  misplacements  which  I  would 
poi  ut  out  us  essential  to  be  supplied  aud  rectitied,  I  would  instance  at  least  the  follow- 
ing : 

The  Varliameninry  announcement  of  Urithh  recoqnxtion  of  rebel  heUiffer  exnj,  of  May 
C,  1861,  by  Lord  J.  Russell,*  (Hansard's  Pari.     '  '  '    " 

imagine  that  this  ha^  been  overlooked  by  the  com{ 

as  matter  for  the  appendix,  as  is  poriiaps  designeit,  is  as  little  allowable  as  to  |)Ut  the 
title-page,  of  a  volume  into  its  appendix.  Uelligerentrecognition,  in  my  view,  was  not 
ert'ected  l)y  the  prochunation  of  .neutrality  of  May  V.l,  but  by  what  was  done  and  writ- 
ten May  (),  1H61,  including,  besides  this  otficial  parliamentary  declaration  or  speech  of 
Lord  KiiHsell,  his  two  governmental  dispatches  of  the  same  day,  addressed  to  Lords 
Cowley  and  Lyons,  the  British  ambassadors  at  Paris  and  Washington,  res|»ectiveiy. 

The  Queen's  proclamation  of  neutrality,  (which,  by  the  way,  is  indexed  in  the  com- 
pilatit>n  under  Xolificaiion  of  Blockade,  vol.  1,  i)age  .'>,)  on  tlio  contrary,  was  never 
eommnnicated  or  intended  to  be  communicated,  diplomatically  and  otticially,  to  the 
United  States,  [see  Lord  Russell's  treatment  of  this  matter.  Blue  Book,  IH(!2,  No.  1,  p. 
27 — Lord  RitsHcIl  to  Lyons,  May  15— where  his  lordship  is  willing  that  it  shall  circulato 
in  the  rebel  States,  but  seems  especially  careful  to  give  no  instruction  about  commu- 
nicating it  at  Washington  ;]  but,  on  the  other  hand,  what  was  resolved  upon  and  de- 
clared by  the  British  government,  at  tho  date  of  May  (5,  was  diplomatically  and  otticially 
communicated  to  the  United  States  June  l.'i,  following;  aud  (I  am  sorry  to  say)  to  tho 
rebels  on  or  about  July  liO,  through  the  Ihtnch-TrcHcot  mission,  at  Charleston,  S.  C. 
(Compilation,  vol.  1,  page  135.)  If  the  honorable  Secretary  has  ever  scrutinized  this 
point,  he  will  have  found,  I  tliiiik,  that  both  Lord  Russell  ami  Mr.  Seward  consider  tho 
coinn.innication  of  British  aud  French  recognition  of  rebel  belligerency  to  hav  ken 
effect,  or,  at  least,  been  attem))ted,  in  Washington,  in  the  personal  interview  o  wo 

foreign  ministers  with  Mr.   Seward,  Juno   15,   18(51,  described  in  the   Brit  lo 

Book,  1H()2,  No.  3,  p.  9,  (Compilation,  vol.  1,  p.  (52,)  under  in<lex  caption  J)eriunithtn 
of  I'arix  ;  (I)  aud  in  the  two  dispatches,  Siivard  to  Dayton,  of  June  17,  (Comi»ila1ion, 
vol.  1,  p.  ()(),)  and  Seward  to  Adama,  of  June  19,  18(51,  (ib.,  p.  64.)  Ho  will  have 
found.  fnrtluMMuoro,  that  the  instruction  on  Lord  Russell's  part  was  originally  con- 
cocted May  13,  though  bearing  date  May  IS,  (Compilation,  p.  HO,  note ;  ib.,  p.  104, 
^^  FostHcri})! :")  [this  important  dispatch  is  omitted  from  page  50  of  tho  Compilation, t 
its  proper  ])lace,  and  given  on  page  107,  under  inclosure,  limsell  to  Adams,  of 
August  2d,  18(51,  ib.,  p.  105;]  and  that  the  French  instruction  to  Mercier,  couununi- 
catod  in  tlio  same  personal  interview  in  Washington,  bears  date  "May  11,  1861," 
(P>ein/a  Yellow  Book  for  18(51;  Les  Ctats-Unis,  pages  93-96;)  which  communica- 
tion, it  seems  to  me,  ought  in  historic  fairness,  at  least,  to  have  made  part  of  the 
"Alabama  Compilation  ;"  though  I  have  observed  that  it  has  been  omitted.  For 
further  reference  to  Mr.  Sewanrs  sagacious  aud  correct  perception  of  the  bearing  of 
the  British  communication  of  rebel  recognition  dated  May  18,  cloaked  under  the  name 
of  the  '^Declaration  of  Paris,"  I  would  refer  the  honorable  Secretary,  in  addition,  to 
"Compilation,"  top  of  p.  194,  given  under  index  caption  "Revocation  (!)  of  Bellig- 
erent Recognition;"  aud  to  Compilation,  page  196,  at  the  bottom  of  tho  page,  under 
same  index  caption,  where  Mr.  Seward  speaks  of  "the  promised  direct  communication, 
bringiny  it  (rebel  belligerent  recognition)  authoritatively  before  this  Government  in  the 
form  chosen  by  the  British  government  itself."  As  for  Lord  Russell's  and  Lord  Lyons's  un- 
derstanding that  the  instruction  of  May  18  was  intended  for  the  formal  communica- 
tiou  to  tho  United  States  of  the  action  taken  by  the  British  government  on  this  head, 
see  Bussell  to  Lyons,  2d  dispatch  of  May  18,  (Compilation,  p.  51,  three  to  first  five  lines ; 
also,  the  last  two  lines  of  the  same  dispatch,  where  Lord  Russell  speaks  of  "  commu- 
nicating" [this  "admission  of  the  belligerent  rights  of  the  Confederate  States  of 
America,"]  "  at  Montgomery,  to  the  President  of  the  so-styled  Confederate  States.") 
See,  also,  Cowley  to  Russell,  of  May  9,  (Comiiilation,  p.  50,  second  paragraph  from  top,) 
where  Cowley  quotes  Thouvenol  as  "  to  precedents"  ''for  recognizing  belligerent  rights  ;" 
Lyons  to  Russell,  June  17,  1861,  (Compilation,  p.  63,)  where  Mr.  Seward  for  the  moment 
appears  to  have  thought  that  the  scheme  was  not  a  covert  aud  delusive  one,  but  a 
bona  fide  attempt  to  reform  tho  declaration  of  Paris ;  and  Lyons's  instruction  to  Bunch  of 

*  Published  on  page  482,  Vol.  IV,  Claims,  «&c. 
t  It  is  referred  to  by  a  foot-note  ou  page  50. 


!/i  n/prorofjn- 
— ruittiratiiifj 
intod  Niicli  a 
4,  lrt(i:{,  Ala- 
oiitliH  a^o  ill 

ICttT  of  ()|»»'Il 

imd,  in  coiii- 
t'OIl  tlio  COII- 

aiul  which  I 

lich  I  would 
t  the  foUow- 

•"Pi/i  of  Mny 
)  I  do  not 
,'"l)f.lmtes" 
H  to  put  tho 
cw,  waH  not 
110  and  writ- 

or  H|MM!ch  of 

Hed  to  LordH 
•ectively. 

in  the  coin- 
,  was  nrvcr 
iaiiv,  to  the 
^()-4,  No.  1,  p. 
lall  circnhito 
out  coiniiin- 
pon  and  do- 
md  oflHt'iully 
)  sav)  to  tho 
h'Hton,  S.  C. 
itinized  this 
consider  tho 

hav  ken 
V  o  wo 

hit  10 

Dcrtu  ration 
'oiiiltihitioii, 
J  will  have 
s^inally  con- 

ib.,  p.  104, 
3mpilation,t 
Adams,  of 
,  couiinuni- 
11,  1861," 
30iuinuuica- 
part  of  tho 
itted.      For 

bearing  of 
er  the  name 
iddition,  to 
!)  of  BoUig- 
page,  under 
imunication, 
tment  in  the 
Lyons's  un- 
lommunica- 
1  this  head, 
t  five  lines; 
tf  "commu- 
e  States  of 
be  States.") 
1  from  top,) 
<mt  rights  ;" 
the  moment 

one,  but  a 

to  Bunch  of 


GENERAL    APPENDIX. 


32? 


Juljiii,  1801,  (Compilation,  p.  I'iH,)  where  L«ud  LyoiiH  inakeH  tlio  di»i)ateh  of  May  18, 
(No.  1.)  tht!  very  veliich)  of  eoimnunicating  belligerent  recognition  to  the  rebel  eon- 
federacy,  through  Mr.  Hunch,  tho  UritiNh  consul,  resident  at  Charleston.  ScmUIi  Caro- 
lina. Ihit  if  anything  were  wanting  to  coinpletu  this  eharaeteri/ation  of  the  selienie, 
it  is  to  be  found  in  tho  liuHvU-Trixvot  |)ai>ers,*  where  Consul  Ihnndi  puts  down,  in 
black  and  white,  that  tho  object  of  the  mission  was  to  go  a  step  furtlu-r  in  i>elligerent 
recognition  toward  full  rt;cognitiou  of  couf<'derate  independence  than  had  lieen  done 
oil  tlie  (jth  of  May.  It  is  for  this  reason  that  I  have  already  ventured  in  my  former 
letter  to  press  upon  the  .Secretary's  attention  tho  importance  of  these  papers,  and  my 
earnest  hope,  if  no  scruple  of  delicacy  toward  Mr.  Trescot  exists  on  the  part  of  the 
Government,  and  no  fear  of  their  existing  national  hostilities,  tiiat  tiiey  may  be  given 
to  the  world.  I  would  add,  in  respect  to  these  papers,  that  Mr.  Trescot  accompanied 
them  with  Southern  newspaper-cuttings,  showing  the  republication  in  those  Journals, 
in  tho  summer  of  IHft'i,  of  the  liritish  parliamentary  do(Miiuents  of  May  *i,  18(11,  Ac! , 
which  cuttings  I  hope  will  make  a  part  of  the  compilation  publication,  if  such  ))iil)li- 
catiou  of  them  is  ever  to  be  made;  and  that  Mr.  Trescut  speaks,  in  his  record  memoran- 
dum of  the  mission,  of  a  long  "private"  letter  of  Lord  Lyons  to  Kiinch,  which,  if  pro- 
curable, would  probably  be  worth  more  than  all  tho  other  documents  jitit  togetlier. 
I  am  not  certain,  however,  that  Mr.  Trescot  did  not  orally  inform  Mr.  .Sanford,  through 
whose  patriotic  exertions  these  valuable  documents  were  secured  to  tho  I'nii  t>d  »Slates 
Government,  that  he  had  returned  this  i)rivate  letter  to  Mr.  Hunch. 

In  regard  to  Lord  Russell's  speech  t  of  May  (5,  18(11,  it  may  perhaps  be  worth  men- 
tioning to  the  honorable  Secretary,  that  Mr.  Seward  thought  his  lordship's  (|uotation 
of  Canning's  dispatch  «)f  the  l'2th  of  October,  1825,  (toward  the  close  of  the  speech) — 
that  in  which  he  speaks  of  its  being  a  coiulition-precedent  to  any  such  belligerent 
recognition,  •'  that  the  detention  by  the  searching  vessel  is  f(U"  the  jtnrposeof  bringing 
the  vessels  detained  before  an  established  court  of  prize,  and  that  confiscation  sliouhl 
not  take  |ilace  until  after  condemnation  by  such  competent  tribunal"— of  importaueo 
enough  to  recjuest  Mr.  Adams  to  endeavor  to  obtain  the  wlude  of  tht^  dispatch  (|uoted; 
and  that  Mr.  Adams  even  applied  to  Lord  Russell  personally  for  that  puijiose,  but  un- 
successfully.— (See  MSS.  correspondence  in  Department  of  State,  December,  18(17,  to 
February,  1868.) 

But  to  proceed  with  further  omissions  and  niisplacoments: 

The  moat  important  part  of  Lord  liuHselVs  dixpaii  u  to  Lord  Cowley  of  May  (S,  18(il — that 
part  which  gives  the  key  to  the  whole  movement,  ami  was  the  launching  of  the  Hiiiuli 
missiiui — is  left  out  on  jiage  3G,  (where  the  rest  is  given  under  index  caption  of  ".Vo/j- 
Jication  of  lilockade,''  p.  5,)  and  is  only  given  at  page  48  under  "Ikclaration  of  Parin." 

On  pagt;  'i7  is  given  Lord  Russell's  account  of  liis  interview  with  the  reliel  emissa- 
ries Yancey,  Mann,  and  Host,  on  May  4,  18(51,  (the  Saturday  before  the  Monday  of  May 
6,  when  our  civil-war  fortunes  wore  to  receive  that  stroke  of  paralysis  which  was  to 
benumb  them  for  four  long  years,)  ft«<r»m//s //i<;/«</er  ««(//«>■  m')re  important  amount  of 
the  same  interview,  given  by  the  emissaries  themselves,  under  dale  of  Anyunt  11,  18(11  ;  [a 
portion  of  this  account  is  afterward  furnished,  to  be  sure,  at  page  '.V.i7t,  niuler  head  of 
"Port  lieyulations,"  (!)] — a  most  important  document  in  the  history  of  belligerent  rec- 
ognition, which  seems  to  have  escaped  Mr.  Seward's  attention  in  discussing  the  sub- 
ject-matter with  Lord  Stanley,  in  January,  18t>7.  {Seward  to  Adams,t  January  1'<J,  18(17, 
U.  S.  Dip.  Cor.,  1867,  pp.  45-50.) 

Lord  BuHselV't  important  letter  to  the  Commissioners  of  the  Admiralty,  of  May  1,  18(11  — 
which,  perhaps,  amounts  to  a  recognition  of  rebel  efjuality  at  that  early  day.  but  wliich 
certainly  constitutes  the  only  instruction  given  to  British  cruisers  during  the  war  that 
tfta<  government,  so  far  as  I  am  aware,  h.is  ever  published — is  given  (page  :W)  under 
index  caption  "Notification  of  Blockade,"  (!)  when  the  blockade  was  as  yet  unknown. 

Lord  Lyons  to  Lord  Russell  of  April  22,  1861,  (showing  that  Lord  Lyons  considers 
that  but  few  British  cotton-vessels  will  be  on  the  American  coast  when  the  blockade  takes 
effect,  and  that  uo  great  alarm  need  bo  apprehended  from  rebel  cruisers,)  given  page  18 
of  the  Compilation — omits  the  date,  "  Received  May  10,''  (i.  e.,  at  tho  FonHgn  Otlice.)  likt; 
Mr.  Seward's  official  communication  of  the  blockade,  o(  April  19,  (page  2:5,)  that  of 
"May  14,"  commented  on  in  my  former  communication  ;  showing  that  official  nolifiva- 
tion  of  the  American  proclamation  of  blockade  did  not  actually  reach  the  British  yovernmvnt, 
on  its  own  showing,  till  twenty-four  hours  or  more  after  the  2)ublication  of  the  Quten^s  procla- 
m.ation  of  neutrality, 

Mr,  Seward^s  bold  and  enei-getic  letter  to  Mr,  Adams,^  of  May  21,  1861 — written  after 
hearing  of  the  parliamentary  declaration  of  May  6,  but  before  any  oliicial  commuiiiea- 
tiou  of  belligerent  recognition,  or  information  as  to  intention  of  issuing  the  proclama- 
tion of  neutrality,  and  which  letter  of  Mr.  Seward's  Lord  Lyons  '•  fears  the  President 

•  The  correspondence  referred  to  by  Mr.  Bemis  is  on  lile  in  the  Department  of  State, 
and  will,  if  desired,  be  placed  at  the  disposal  of  the  High  Joint  Commission. 
t  See  Compilation,  vol.  I,  p.  483. 
t  See  Compilation,  vol.  3,  p.  660. 
$  See  Compilation,  vol.  1,  p.  179. 


:; 


rit 


C" 
'>i% 


328 


GENERAL   APPENDIX. 


;"r  ifi 


•    1    '■ 


lijis  consented  to  iK'infr  sent,''  (Lyons  to  IIiihhvU,  May  'i'.\,  l^^fil,  IJliio  Book,  If^G'^^,  No.  1,  yafre 
nil, , 'in (I  i(7i((7/  /((«/,  so  tar  as  I  can  stM!,  /«  «/w  h(j<  f/nr;i  iic  iiu;  ('(impilatioii) — is  only  <;iven 
iMitirt'  (at  pa^fe  179)  wiulor  "  Hivocntioii  of  IkUifn-rvnrii"  (\)  Tin;  »!Xtrai!t  on  the  (sirlier 
l>ii;;e,  (51,)  thonmh  JnuMy  ur.plicuted  under  "  Dccliiralion  of  J'liriH,"  contain.s  no  rellec- 
tidii  or  expre-ssion  of  that  "  violent  oxitlosion  of  wrath,"  which  Lord  Lyons  reters  to  as 
exliiliited  a  the  American  jiress  utjnerally,  on  the  reci^ption  of  the  news  of  the  jiroceed- 
iii;;s  in  Parliament  on  the  (ith,  lint  which  rellection  of  American  setitiment  is  justly  and 
iuicildy  dei)i(ted  in  the  remainder  of  Secretary  Reward's  energetic  instruction  to  Mr. 
Adams  of  ilay  21,  not  exlriieti'd. 

Aii'i  Mere,  jierliajiH,  in  rej;ard  to  index  captious  in  vol.  1, 1  may  remark  once  for  all 
iHMin  the  imperious  nec(\ssity  of  some  explanatory,  prefatory,  or  suppleuHUitary  note, 
sliiiwinfi;  why  the  head  cajition  "  yotifwatioii  of  JUockadc  "  is  foisted  into  the  index  from 
l>iij;es  iii  to  v,  underneath  the  };eneral  title  "  livcofinition  of  liihii  J!vlli(ierviiri/ ;  why  the 
jii'iieral  title  itself  is  not  resumed  ajfaiu  on  paj^o  iv  ;  how  the  "  Di'clanitioii  of  I'ltrin-' 
connects  itself  with  the  main  suhjec*  ;  the  sauui  of  the  "  llevovution  of  liinicli'ii  KriqiKi- 
tnr','^  what  is  meant  by  "  Port  lii'ijidaliouH,'^  pajjes  xxxiii-xxxvii ;  aiul  Jiow  "  J'loponi- 
tiinixfor  Maliatio)!  oiid  Intcrrvutioii  ''  are  distin;;'uishal)le  from  The  current  jf.Muu'al  title 
'•  Hicotinitioii  of  Jiclwl  JUniyviriKji.''  Nor  do  1  understand  exactly  why,  in  tlu;  text  and 
liiidy  ofthe  vidniue  from  jcige  .517  to  the  end,  the  main  tithiof  the  voluuu*  tviul  the  headin<; 
of  the  pajr*!"  CIcimxaqniiiHt  iiriat  liritoin  "  is  dropped,  and  '^  Knfonoiwiit  of  XinlraHln^'  is 
made  to  ofcnpy  the  headiuf^  of  the  left-hand  p.'ifje,  with  ^'■Amiudmcnt  of  Lairs"  &c.,  on 
the  ri^^ht-haiid  ^^ide.  The  C'oni]iilation  for  most  purposes  would  be  far  nuire  satisfac- 
tory, I  am  constrained  to  think,  vithout  any  divisions  at  all,  atul  with  a  nuue  chrono- 
logical juxtaposition  of  documentary  jiieces,  than  with  such  a  coufusiuj;  and  misjiuid- 
injr  series  of  captions  and  title>j.  In  sayii.j^  this  I  am  well  aware  that  sonui  of  these 
divisions  were  of  my  own  sufifj;estiou  ;  but  with  the  mechanical  arraufjenuMit,  ov  rather 
Jdiv-arraupemcnt,  of  i>rintin<;:,  and  still  more  in  the  absence  ui  an  ex])lau'.itory  preface, 
I  tind  that  all  such  arraut;emeut  ami  distribution  of  my  own  has  oidy  led  to  ci)mpli- 
cated  disorder. 

But  to  hasten  on  with  my  imjierfect  catalogue  of  omission?  and  misiivraugtuneuts 
under  tho  head  of  "Kecognition  of  Keliel  Uellifieremy,"  to  which  I  have  levotetl  a 
more  especial  attention,  '  lin<l  one  of  tlur  live  or  six  ilcmiimh  fur  Ihc  rivull  of  thin  r<ro()- 
iiiliiiii,  as  made  l)y  tlur  United  .States  durinjj;  the  course  of  the  civil  war,  and  tlit^  de- 
iiiMiid  whicii  of  all  otheis  was  nuist  exjilicitly  and  unwarrantably  refused  by  (ireat 
Ih'itain,  oUniiilh'-r  oiiiiltcil  from  that  head.  I  allude  to  the  d< maud  of  ^tr.  Siicard  of  Orlo- 
h,r-l\,  lHt!.l,(,s,,,rt;Y/  to  Ad'amH,*  No.  ll:5l),  Diji-jDor.  18(14,  Pt.  H.  i»p.  3:!H-:M1,  :'.12,)  which 
iciin  commiiiiiialfd  to  the  ilrilixh  tjoreriiiiuiii  hij  Mr.  Adamx,  A'orcHi /><•)• '2:f,  1>'(>4,  {.IdamD  to 
<V( »•((»•(/, t  No,  ^•JI,  J)i)>.  Cor.  IHtio,  p,  ,'>,)  and  which  wax  poiiil-ldaiik  rtfiiwd  In/  Lord  Hiinmll, 
Sovcmhcr  '21'),  l^(;4,  (I51ue  Hook,  1"(m,  No.  1,  p)>.  'J.''>.  27,  I'H,  Vi'iz-w //  to  /,,i/o/(.s,i  Novemlier 
2<i.)  'J'he  reln,-al  is  givdi  in  tlie  ("c  ni}iilation,  (vol.  1,  ]i)>.  27!>,  Ac.,)  liut  neither  Mi-, 
[reward's  instruction  luir  Mr.  Adams's  communication  of  the  instruction  whi;,'h  led  to 
the  n^fnsal.  A  portion  is  of  Mr.  Seward's  letter,!^^  in  which  the  instruction  is  contained, 
is  indeed  given  at  jtage  (u(\  under  "Aniciidmnit  of  lawn,''  but  not  the  extract  on  jiages 
41,  42  (of  L'euted  (States  Dip,  Cor.,)  relating  to  belligerent  recognition,  which  seems  to 
Ifiive  lieen  ovi :!'  oked  by  the  comiiiler.  It  is  true  that  both  Messrs.  Seward's  and  Ad- 
ams's entire  disjiatches  of  October  24  and  November  21$  art!  given  in  vl.  2,  of  the 
Compilation,  under  ''l>cbc!  opcralionx  from  ('aiiuda"  (jip.  20-;5(),)  but  the  two  portions  of 
tiie  li(lli(/irciit-lUcof/iiitioii  correspondence  ought  not  obviously  to  b(>  given  thus  dislo- 
cated an«l  dissevered.  Esjtecially,  as  it  seems  to  mo,  was  it  desirable  to  bring  our  de- 
mand into  juxtaposition  with  Lord  Russell's  rotiinterr  communication  to  Slidtll  and 
Mason  .>f  Xorcmhrr  2;'),  181)4,  (the  day  before,)  which  Slidell  in  his  intercepted  dispatch 
to  the  rebel  secretary  of  state,  (elsewhere  commented  on,)  justly  characterized  as  a 
gratnitou3  and  extraordinary  ott'eiisivo  lusult  to  the  Governmeii*  of  the  United 
States. 

I  liiid  that  I  have  ondtted  to  notice  in  their  chronological  order  two  other  important 
dispatclus,  or  extracts  of  dispatches,  of  the  year  18112,  relating  to  the  same  head  of 
Iv'ebel  Melligerency,  which  ought  to  have  been  repeated,  or  els(!  dilferently  arr:inged, 
in  V(d.  1  of  the  Comiiilutiou.  The  lirst  is  fiiwnrd  to  Adamx,  So.  2t)t),  Mai)  28,  1h(W,  (^l)ip. 
Col.,  U(l,)  a  disiiatcli  in  which  Mr.  Seward  invoked  tin-  element  of  slavery  tor  the  lirst 
tune,  ;»s  a  ground  for  revocatitui  of  belligi^nMury,  and  which  dispatch  both  Messrs.  Sew- 
ard and  Adams  regarded  as  of  the  highest,  importance  ;  and  the  second,  .Idiimx  to  Sew- 
ard, Xo.  208,  Aniinxl  22.  l'-'t'>2.  (Dip.  t^or.,  1H(I.  IHI.)  highly  noticeable  for  Mr.  Adams's  ?»■■ 
jioit  that  tilt!  Jiritixh  fiorcriiinciit  would  probably  hare  rvvallcd  Iwlliycrriit  rccoyuition  in  lf()2 
(/■  MiClcllati^ii  adrnnce  on  Richmond  had  proved  nncceHxfnl.    Thene  two  (lispatchcH  are 

*  See  Compilation,  vol.  2,  p.  20. 
tSei;  Compilation,  vol.  2.  p.  Uli. 
t  See  Compilation,  vol,  2.  p.  ()7. 
j  Given  iu  lull  on  p.  20,  vol.  2,  of  Compilutiou. 


GENERAL   APPENDIX. 


329 


Xo.  l,l»aKO 
iiiily  <;ivt'ii 
tilt!  oarlicr 
s  iH)  rcllt'c- 
I'ftcrs  to  as 
lie  prociMMl- 
<. justly  aiul 
tiou  to  Mr. 

once  for  all 
iitary  note, 
iii(lt!x  from 
1/ ;  wliy  tlio 
I  of  I'ar'iK '' 
•/I's  EjcqiUi- 

V   "  J't'O/KIKi- 

i^Micral  title 
Ju!  t»'xt  and 
:liu  lii-a<lin;j; 
■ntralilji'''  is 
IS,"  &('.,  on 
re  Hutisfac- 
ore  ilirono- 
1(1  niisf>ui(l- 
110  of  tlieso 
it,  Oi'  rarlier 
iry  preface, 
to  couipli- 

rangeiiients 

L-  levoted  a 

/  thin  riro(i- 

111(1  the  (le- 

1(1  liy  (Jrcat 

(i)(l  of  Orlo- 

•M-2,)  ivhkh 

I,  {.Ulumn  to 

ord  llii^nill, 

t  Novcnilier 

iieitlier  Mr. 

lii;,li  led  to 

I  contained, 

t  on  pajjes 

li  seems  to 

ll's  and  Ad- 

l.y,  of  the 

portions  of 

thus  dislo- 

iii^'  our  de- 

Slidell  and 

id  dispatch 

■rized  as  a 

the    United 

•  important 
lie  head  (d' 
air:iiij;t'd, 
IH(W,  (^l)ip. 
tor  the  tirst 
lessis.  8(nv- 
illlin  to  .Scic- 
tVdams's  rv- 
tion  ill  IHi'i 
latches  are 


given  at  pages  40,'),  4'M,  of  vol.  1  of  the  Cojiipilation,  under  the  topic,  '*rroponitionH  for 
Midiatiuii,^'  &c.;  Imt  are,  perhaps,  lost  to  tin;  sul).j(!et  of  "IliToyniiioii."  (See  Mr.  Sew- 
ard's* comments  on  Lord  Kiissell's  course,  Seiitember  C,No.  'SM.,  .Jip.  Cor.,  If^ty,  p.  ISM^ 
also  omitted  from  the  Compilation  ;  though  another  extract  from  the  same  dispatch  is 
given,  vol.  1,  p.  4:{4.) 

IJiit  to  recur  to  tli(»  latt(^r  period  of  l-'fio  ;  again  I  find  the  imiiortant  dispatch  o(  Sew- 
ard to  Adutiis,  Xo.  l:{t»4,  of  March  1.'),  (Dij).  Cor.,  18H.").  \>.  '.i !.'>,)  omitted   from    both  vols. 
1  "11(1  vJ.    This  is  a  dispatch  in  which  Mr.  Seward  makes   the   diminution  and  dt^struc- 
tion  of  AiiK'iican  commerct!  a  sjiecilic  gi.iuini  of  national  claim  against  (Jreat    Uritain, 
connected  with  the  onttit  in  British  ))i)rts  of  rebel   cruisers,  and   whi(di  assumes  more 
coiisei|iience  by  reason  of  Mr.  Keverdy  .lohnson's  recent  unfonmUd  admissii>ns  in  that 
resjiect.     I  ought  to  notice,  perhajis,  in  reference  to  the  compilation,  that  Mr.  Adams's 
fuliillment  of  .Mr.  Seward's   instruction,  by    way  of  communicating  this  dispat'di,  is 
given  at  jiagt!  "JHO  of   vol.  1  of  tlit^  Comiiilation,  though  somewhat  varied  in  terms  and 
recast   as  to   its  connecti(Mi.     Another  (lis|>ateli  (jf    .!/»•.    Scward'H    of   Morvh  '.iO,  Iriti-'i, 
(t.Scit7(/'(//o  ,l(/«m.'<.  No.  i:{I(ijDip.  Cor., p.  "i.VJ,)  five  days  later, alsooniitted. ought  to  have 
given  Mr.  Seward's  urgent  claim  (at  its  conclusion)  for  the  recall  of  lielligerent  recog- 
nition.    Following  after  this  period  at  a  near  iut(!rval  I  lind  more  omissions  under  tlio 
head  of  ''  demand  for  revocation  of  rebel  belligerency,"  which  it  seems  to  me  are  ma- 
terial deticieneies. 
Dixputrh  Xo.  V.\r>0,  F.  If.  Seward  to  ,idamn,of  April  12,t  (Dili,  f '"»"•.  1»-  '■^^''^•) 
JJinpateh  Xo.  KTU,  Jdamn  to  Hunter,  of  ./inie  '2,  ^  (Dip.  Cor.,  p.  :{i»li.) 
JJiximteh  Xo.  1)77,  Adams  to  IJniitu  ,  of./mie  2,  \\  (Dip.  Cor.,  ji.  :5!)7.) 
Dixjiiiteh,  (inniiiinhered  eirenlar,)  Sewtird  in  .Idam.-t,  June  1  ,*i  (Dip.  C(ir.,  p.  400.) 
S(Mue  or  all  of  these  are  certainly  necessary  ti»  tell  the  story  of  the  reluctant  recall 
by  England  of  \\^hv\  recognition,  and  how  easily   and   fairly    !h"   same  measures  (of 
merely  withholding 'losjiitality  from  rebel  cruisers,  and  of  ac Drding  it  as   usual   to 
United  States  ships  of  war)  might  have  been  practiced  ujiouby  that  governmeut  from 
18(>"i  downward. 

This  bijiiicli  of  tho  ca.so  may  be  appropriately  do.sed  by  printing 
entire  the  instriictioiis  of  Mr.  Fish  to  Mr.  Motley,  of  the  2r>th  of  Sep- 
tember, 18<)!>,  and  the  imsisjned  "  notes''  ujjon  that  dispatcli,  which  were 
handed  to  Mr.  Fiish  by  Mr.  Thornton  on  the  Gth  day  of  Xovend)er, 
18(>l>. 

Althonfjh  an  ofhcial  ciiaracter  to  the  latter  docninent  was  disavowed 
by  I  ord  Clarendon,  and  it,  therefore,  does  not  form  it  part  of  the  oilieial 
recoid  of  tli(!  (;ase,  the  fact  that  it  was  reimted  to  have  been  prepared 
l)y  Jjord  Tciiderden  (then  Mr.  Vlibottj  will  give  it  an  interest  in  the  eyes 
of  the  America!!  commissioners. 


No.  70.] 


Mr.  Fish  to  Mr.  Motley. 

DKrARTMENT   (IT   S'lATK, 

H'asliingtoit,  .Siplcmber  2!^^,  1S(!9. 

Siu:  When  you  left  here  upon  your  mission,  the  moment  was  thought  not  to  be  tho 
most  liopel'ui  to  enter  upiui  reiii'Wed  discnssicm  or  negotiation  with  the  gov(U'nmeiit  of 
dreat  Uritain  on  the  subject  (d'  tin;  claims  of  this  (ioverninent  against  that  of  Her 
Maj(!sty,  and  yon  were  instruct<!d  to  convey  to  Lord  Clarendon  the  opinion  of  the  I'resi- 
deiit  that  a  suspension  of  the  discussion  for  a  short  per-od  ininht  allow  the  siibsidiMice, 
of  any  yxeiteiiuuit  or  irritation  growing  out  of  events  iieu  rec(!nt,  and  might  enaldu 
the  two  j,'0vernments  to  ivpproach  imu'e  readily  to  i'    iiliition  of  tluur  dill'ereiiees. 

You  have  inlormed  me  that  L(ud  Clan  iidoii  ^:^^  no  (dijection  to  this  conrw*,  and 
agrei^l  with  you  that  it  woald  be  well  to  give  time  for  eimdions  which  had  been  ex- 
cil'.Ml  of  late  to  subsid(>.  Th'!  President  is  inclined  to  belim'e  that  sudicii^nt  time,  iimy 
have  uow  elapsed  to  allow  Hiibsidenco  of  tho.so  emoti(Mis,  and  that  thus  it  may  be 

*  The  extract  jirinted  on  piige  4;!4  and  the  one  on  pagt^  ol'.?  of  V(d.  1,  Compilat  on 
constitutci  Mr.  Seward'«  instiuction  to  Mr.  Adams  of  September  H,  iw(i'.i,  with  tin*  "X- 
ception  of  three  paiagraplis,  which  treat  entirely  of  military  events  transpiring  in 
tho  United  States  at  that  time. 

tSee  Compilation,  vol.  I,  p.  '.WG. 

i  See  I Ompilation,  vol,  I,  p.  .'{(!7. 

^  See  ('(Uiipihitioa,  vol.  1,  p.  !J7l.- 

II  ."^ee  Compilation,  vol.  1,  p.  :$":{.  , 

i[  See  Cumpilatiuu,  vol  l,i».  374. 


M 


m 

•''3 


330 


GENERAL   APPENDIX. 


1^     ;■ 


P- 


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opportune  and  convenient  at  the  present  conjunctnre  to  place  in  yonr  hands,  for 
appropriate  nse,  a  dispassionate  exposition  or  the  just  causes  of  cuuiplaiut  of  the 
Government  of  the  United  States  against  that  of  Great  Britain. 

In  order  to  «lo  this  in  a  satisfactory  manner,  it  is  necessary  to  go  hack  to  tlio  very 
beginning  of  the  acts  and  events  which  have  in  their  progress  and  cotisnuuuation  so 
much  disturbed  the  otherwise  amicable  relations  of  the  two  goverinuents. 

Wlien,  in  the  winter  of  1860  and  1861,  certain  States  of  the  Auierican  Union  undertook 
by  ordinances  of  secession  to  separate  themselves  from  the  others,  and  to  constitute  of 
their  own  volition,  and  by  force,  a  new  and  independent  republic,  under  tlie  name  of  the 
Confederates  States  of  America,  there  existed  as  between  Great  Britain  and  the  United 
States  a  condition  of  profound  peace;  their  political  relations  were  professedly  and 
apparently  of  the  most  friendly  character,  and  their  commercial  and  Hnanoial  relations 
were  as  close  and  intimate  in  fact  as  they  seemed  to  be  cordial  in  spirit,  sucrii  as 
became  the  two  great,  liberal,  progressive,  and  maritime  and  commercial  powers  of 
the  world,  associated  as  they  were  by  strong  ties  of  common  interest,  language,  and 
traditioi  . 

The  Government  of  the  United  States  had  no  reason  to  presnine  that  the  amicable 
sentiments  of  the  British  government  would  be  diminished,  or  otherwise  i»rejiidicially 
affected,  by  the  occurrence  of  domestic  insurrection  within  the  United  States,  any 
more  than  those  of  the  latter  had  been  impaired  by  the  occurrence  of  insurrection  in 
British  India,  or  might  be  impaired  by  such  occurrence  elsewhere  in  the  dominions  of 
Great  Britain.  Least  of  all  could  the  Government  of  the  United  States  anticipate  hos- 
tility toward  it,  and  special  friendship  for  the  insurgents  of  the  seceding  States,  in 
view  of  the  inducements  and  objects  of  that  insurrection,  which  avoweidly,  and  as 
every  statesman,  whether  in  Europe  or  America,  well  knew,  and  as  the  very  earliest 
mention  of  the  insurrection  in  the  House  of  Commons  indicated,  were  the  secure  es- 
tablishment of  a  perpetual  and  exclusive  slave-holding  republic.  In  such  a  contest  the 
Government  of  the  United  States  was  entitled  to  expect  the  earnest  good-will,  syinpa- 
thj ,  and  moral  support  of  Great  Britain. 

It  was  with  painful  astonishment,  therefore,  that  the  United  States  Groveniment  re- 
ceived information  of  the  decision  of  Her  Majesty's  government,  which  had  already 
been  made  on  the  6th  day  of  May,  1861,  and  was  announced  on  that  day,  in  the  House 
of  Commons,  by  her  ministers,  and  was  followed  by  the  issue,  on  the  llUh  of  May,  1861, 
of  a  proclamation,  which  in  effect  recognized  the  insurgents  as  a  belligerent  i)ower, 
and  raised  them  to  the  same  level  of  neutral  right  with  the  United  States. 

The  President  does  not  deny,  on  the  contrary  he  maintains,  that  every  sovereign 
power  decides  for  itself,  on  its  responsibility,  the  question  whether  or  not  it  will,  at  a 
given  time,  accord  the  status  of  belligerency  to  the  insurgent  subjects  of  another 
power,  as  also  the  larger  question  of  the  independence  of  such  subjects,  and  their  ac- 
cession to  the  family  of  sovereign  states. 

But  the  rightfulness  of  such  an  act  depends  on  the  occasion  and  the  circumstances, 
and  it  is  an  act,  like  the  sovereign  act  of  war,  which  the  morality  of  the  public  law 
and  practice  requires  should  be  deliberate,  seasonable,  and  just  in  reference  to  sur- 
rounding facks  ;  national  belligerency,  indeed,  like  national  independence,  being  but  an 
existing  fact,  officially  recognized  as  such  ;  without  which  such  a  declaration  is  t>nly 
the  indirect  manifestation  of  a  particular  line  of  policy. 

The  precipitancy  of  the  declaration  of  the  Queen's  government,  or,  as  Mr.  Bright 
characterized  it,  "the  remarkable  celerity,  undue  and  unfriendly  liaste"  with  which 
it  vras  made,  appears  in  its  having  been  determined  on  the  6th  of  May,  four  days  prior 
to  the  arrival  in  I  ondon  of  any  official  knowledge  of  the  President's  proclamation,  (of 
April  19, 1861,)  by  reference  to  which  the  Queen's  proclamation  has  since  been  defended, 
and  that  it  was  actually  signed  on  the  13th  of  May,  the  very  day  of  the  arrival  of  Mr. 
Adams,  the  new  American  minister,  as  if  in  the  particular  aim  of  forestalling  and  pre- 
venting explanations  on  the  part  of  the  United  States. 

The  prematureuess  of  the  measure  is  further  shown  by  the  very  tenor  of  the  procla- 
mation, which  sets  forth  its  own  reasons,  namely,  "  Whereas  hostilities  have  unhappily 
commenced  between  the  Government  of  the  United  States  of  America  and  certain 
States  styling  themselves  the  Confederate  States  of  America."  Moreover  it  is  not  pre- 
tended by  the  proclamation  that  war  exists,  but  only  a  "  contest,"  in  reforejjce  to  wiiich 
it  is  not  unimportant  to  note  that  the  language  used  is  such  as  would  titly  apply  to 

{)arties  wholly  nidependent  one  of  the  other,  so  as  tiius  to  negative,  or  to  suppress,  at 
east,  tile  critical  circumstance,  that  this  bare  commencement  of  hostilities,  this  incipi- 
ent contest,  was  a  mere  domestic  act  of  insurrection  within  the  United  States. 

But  that  which  conclusively  shows  the  unsoasonable  precipitancy  of  t\ui  measure  is 
the  fact  tliat  on  that  day.  May  13, 1861,  and  indeed  until  long  afterward,  not  a  battle 
liad  been  fought  between  the  insurgents  and  the  United  States,  nor  a  combat  even, 
save  the  solitary  and  isolated  attack  ou  Fort  Sumter.  Did  such  a  bare  comiueucement 
of  hostilities  constitute  belligerency  f    Plainly  not. 

There  was  at  that  time  no  such  thing  as  a  population  elevate^  into  force,  and  by  the 
prosecution  of  war,  which  Mr.  Cauuiug  points  out  as  tho  test  of  belligerent  ouuditiuu. 


GENERAL  APPENDIX. 


331 


hands,  for 
kiiit  of  the 

to  tho  very 
iiiuatioii  so 

I  niKlertook 
institute  of 
laine  of  thu 
the  iJiiitoil 
ssedly  iiud 
il  rehitioiis 
it,  8ii(,'l«  as 
powers  of 
^nago,  and 

!io  amicable 
rejiidicially 
States,  any 
irrection  in 
)niini(.ns  of 
ici|>at«  Ijos- 
<;  States,  in 
My,  and  as 
ery  earliest 
e  secure  os- 
contest  the 
Yill,  syuipa- 

^ninient  re- 
had  already 
i  the  Honso 
fMay,lHGl, 
rent  i>ower, 

y  sovereign 

it  will,  at  a 

of  another 

id  their  ac- 

ninistances, 
pnblic  law 
ence  to  snr- 
leing  bntan 
itiou  is  only 

Mr.  Bright 
with  which 
r  days  prior 
bmation,  (of 

n  defended, 
rival  of  Mr. 
ng  and  pre- 

tho  procla- 
i  unhappily 
and  certain 
t  is  not  pre- 
ce  to  which 
t.ly  apply  to 
suppress,  at 

this  iucipi- 
tes. 

)  ineasnre  is 
not  a  battle 
onibat  oven, 
iiuenoement 

and  by  the 
it  ouuditiou. 


The  assumed  belligerency  of  the  insurgents  was  a  fiction,  a  war  on  paper  only,  not  in 
the  iield,  like  a  paper  blockade;  the  anticipation  of  supposed  belligerency  to  come, 
but  which  might  never  have  come  if  not  thus  anticipated  and  encouraged  by  the 
Queen's  government. 

Indeed,  as  forcibly  put  by  Mr.  Adams,  the  Queen's  declaration  had  the  effect  of  creat- 
ing posterior  belligerency,  instead  of  merely  acknowledging  an  actual  fact ;  and  that 
belligerency,  so  far  as  it  was  maritime,  proceeding  from  the  ports  of  Great  Britain  and 
her  dependencies  alone,  with  aid  and  co-operation  of  subjects  of  Great  Britain. 

The  Government  of  the  United  States,  that  of  Great  Britain,  and  other  European 
powers,  bad  repeatedly  had  occasion  to  consider  this  question  in  all  its  bearings. 

It  was  perceived  that  the  recognition  of  belligerency  on  the  part  of  insurgents, 
although  not  so  serious  an  act  as  the  recognition  of  independence,  yet  might  well  be 
prejudicial  to  the  legitimate  government,  and  therefore  be  regarded  by  it  ns  an  act  of 
unfriendliness.  It  was  a  step,  therefore,  to  bo  take,  with  thoughtfulness,  and  with 
due  regard  to  exigent  circumstances.  Governments  had  waited  months,  sometimes 
years,  in  the  face  of  actual  hostilities,  without  taking  this  step.  But  circumstances 
might  arise  to  call  for  it.  A  ship  of  the  insurgents  might  appear  in  the  port  of  the 
neutral,  or  a  collision  might  occur  at  sea,  imposing  on  th^  neutral  the  necessity  to  act ; 
or  actual  hostilities  might  have  continued  to  rage  in  the  theater  of  insu  rgent  war, 
combat  after  combat  might  have  been  fought  for  such  a  period  of  time,  a  mx-ss  of  men 
may  have  engaged  iv.  actaul  war  until  they  should  have  acquired  the  consihiency  of 
military  power,  to  repeat  the  idea  of  Mr.  Canning,  so  as  evidently  to  constitute  the 
fact  of  belligerency,  and  to  justify  the  recognition  by  the  neutral ;  or  the  nearnesK  of 
the  seat  of  hostilities  to  the  neutral  may  compel  the  latter  to  act.  In  either  of  these 
contingencies  the  neutral  would  have  a  right  tu  act ;  it  might  be  his  sovereign  duty  to 
act,  however  inconvenient  such  actioii  should  be  to  the  legitimate  governnuMit.  There 
was  no  such  fact  of  necessity,  no  such  fact  of  continued  and  flagrant  existing  hostili- 
ties, to  justify  the  action  of  Great  Britain  in  the  present  case.  Hence  the  United 
States  felt  constrained  at  the  time  to  regard  this  proclamation  as  the  sign  of  a  purpose 
of  unfriendliness  to  them,  and  of  friendliness  to  the  insurgents,  which  purpose  could 
not  fail  to  aggravate  all  the  evils  of  the  pending  contest,  to  strengthen  the  insurgents, 
and  to  embarrass  the  legitimate  government.  And  so  it  proved,  for  as  time  went  on, 
as  the  insurrection  from  political  came  at  length  to  be  military,  as  the  sectional  con- 
troversy in  the  United  States  proceeded  to  exhibit  itself  in  the  organization  of  great 
armies  and  lleets,  and  in  the  prosecntiou  of  hostilities  on  a  scale  of  gigantic  ningnitude, 
then  it  was  that  the  spirit  of  the  Queen's  proclamation  showed  itself  in  the  event ; 
seeing  that  in  virtue  of  the  proclamation  maritime  enterprises  in  the  ports  of  Great 
Britain,  which  would  otherwise  have  been  piratical,  were  rendered  lawful,  and  thus 
Great  Britain  became,  and  to  the  end  continued  to  be,  thi>  arsenal,  the  navy-yard,  and 
the  treasury  of  the  insurgent  confederacy. 

A  spectacle  was  thus  presented  without  precedent  or  parallel  in  the  liintory  of  civil- 
ized nations.  Great  Britain,  although  the  professt  '  'VhmkI  of  the  United  States,  yet,  in 
time  of  avowed  international  peace,  permitted  ar  irnisers  to  b(!  Httedout  and  har- 

bored and  equipped  in  her  ports,  to  cruise  against  t'  im  rchant-HhipH  of  the  Unittil 
States  and  to  burn  and  destroy  them,  until  our  mauiiiin  coniinirce  was  swept  from 
the  ocean.  Our  merchant- vessels  were  destroyed  pirati«;allv  1  captors  wlio  had  no 
portsof  their  own  in  which  to  refit  or  to  condemn  prizes,  and  wiiumc  only  nationality  was 
the  quarter-deck  of  their  ships,  built,  dispatched  to  sea,  and  not  s<  <1<)ni  in  nan  .  still, 
professedly  owned  in  Groat  Gritain.  Earl  Russell  truly  said,  "It  .so  hajipens  tiiat  in 
this  conflict  the  confederates  have  no  ports,  except  those  of  the  Mersey  and  the  Clyde, 
from  which  they  sen  1  out  ships  to  cruise  against  the  Federals."  The  number  of  our 
ships  thus  directly  destroytfd  amounts  to  nearly  two  hundretl,  and  the  vain.'  of  prop- 
erty destroyed  to  many  millions.  Iiulirectly  the  effect  was  to  increase  tli'  rate  of  in- 
surance in  the  United  States,  to  diminish  exports  and  imports,  and  otherwise  obstruct 
domestic  industry  and  production,  and  to  take  away  from  the  United  State  s  its  im- 
mense foreign  commerce,  and  to  transfer  this  to  the  merchant-vessels  of  Great  Britain, 
so  that  while  in  the  year  1860  the  foreign  merchant  tonnage  of  the  Uniti  d  ,■-  tes 
amounted  to  2,546,237  tons,  in  1866  it  hail  sunk  to  1,492,923  tons.  This  depr..  mtion 
is  represented  by  a  corresponding  iucreivse  in  the  tonnage  of  Great  Britaii  .luring 
the  same  period  to  the  amount  of  1,120,650  tons.  And  tiio  amount  of  mm mo-cf?  ab- 
stracted from  the  United  States  and  transferred  to  Great  Britain  during  the  same 
period  is  in  still  greater  proportion.  Thus,  in  effect,  imr  againsl  the  United  States 
was  carried  on  from  the  ports  of  Great  Britain  by  British  subjects  in  the  name  of  the 
confederates.  Mr.  Cubden,  in  the  House  of  Commons,  characterized  by  these  very 
words  the  acts  permitted  or  suflfered  by  the  British  government :  "  You  have  been  car- 
rying on  war  from  these  shores  against  the  United  States,"  he  said,  "  and  have  been 
iiifiioting  an  amount  of  damage  on  that  country  greater  than  would  have  been  pro- 
duced by  many  ordinary  wars." 

The  gravity  of  these  facts  may  be  appreciated  by  considering  what  had  happened  at 
other  periods.    lu  the  latter  period  of  the  war  uf  the  Fi-uuuh  revolution,  Great  Britain 


.H 


332 


GENERAL   APPENDIX. 


■  \ 


It'    i 


f 


ml! 


( 


1 1 

ifcli 

f  !^  • ' 

i'; 

was  comixllcd  to  straiji  every  nerve  to  niaintiiin  herself  against  the  power  of  Napo- 
leon. Ill  siu'li  straits,  by  a  sort  of  war  in  (lis<;iiise,  slie  trtispassed  on  tlie  rij^lits  of  neu- 
trals, witii  siiecial  ])reJiMlice  to  tlic;  United  tStates,  to  the  n'snlt,  at  hMijjfli.  of  solciim 
war  hetwet-ri  tlie  two  nations.  Hut  neither  in  the  ev<'nts  which  i)reee(le(l  that  war,  nor 
in  the  events  of  the  war  itself,  did  the  United  State-i  snll'er  more  at  tiie  hands  of  Great 
Britain  tlia'n  we  did  dnrin^  tln^  late  relxdlion,  i>y  tne  aid,  direct  or  indireet,  which  she 
atJ'ordiMl  to  the  confederated  insnr<fent  States;  for  while  on  the  ocean  <nir  merchant 
marine  was  de<t;'oyed  hy  cruisers  sent  out  from  Great  Britain,  an<l  our  military  marine 
Avas  mainly  occnjned  in  watching  iuid  c(ninter-wt)rkint>'  hlockadcvrininers  fitted  out  in 
Great  Britain  hy  oflicial  ajjents  of  the  insurj;<'nt3,  on  the  land  it  was  in  likennmner  the 
munitions  of  w  .-ir  and  the  wealth  drawn  hy  the,  insur<ifents  from  Great  Britain  whicli 
enahled  ti.em  to  withstand,  year  aft(!r  year,  the  arms  of  the  Unit(>d  States.  In  the 
midst  of  all  this,  remonstrances  of  tlu;  (!ov(^rinnent  of  the  United  States  were  ])rom|)t, 
earnest,  ami  ])ersisf(!nt.  Our  minister  in  London  u]ii)ealed  to  the  international  amity 
of  tht^  British  <iovernment;  he  called  on  it  to  disi'har}j;e  its  oldiKations  of  lu'Utrality  ; 
lu!  invoked  tlie  aid  of  the  nninicipal  laws  of  (ireat  iritain.  Ample  jtroofs  of  the  wrongs 
committed  weifs  snhmitted  to  the  Queen's  ^ovennnent.  Indeed,  these  wronjis  were 
open,  notorious — perjietrated  in  thefac(M)f  day — the  subject  of  debate  and  of  boast, even, 
in  the  House  of  ('ommons. 

Tiie  Queen's  ministers  excused  themselves  by  allcfjed  defects  in  the  nninicipallaw 
of  the  country.  LeariuMl  counsel  either  atlvised  that  the  wronjjs  ccniimitted  <lid  not 
constitute  violations  of  tlKMuunicipal  law,  or  else  <j;ave  sanction  to  artful  device's  of 
deceit,  to  cover  up  such  violations  of  law.  And,  straufjo  to  say,  the  (uunts  of  Enji- 
land  or  of  Scotland,  np  to  the  very  highest,  were  occu]»ied  month  after  month  with 
judicial  niceties  and  te<!hnicalities  of  statute  oustrnction,  in  this  rt>spect,  whi'e  the 
Queen's  fjovernment  itself,  inclndinji;  tht'.  omnipotent  Parlianusnt,  wlii.ii  nii„-':l  have 
settled  these  (luestions  in  an  hour  by  aijprojiriate  le^i'^lntion,  sat  with  folded  Jirm,.,  .is  if 
nnndmlful  of  its  nitornational  (ddif^ations,  and  suti'ered  ship  after  ship  to  be  constructed 
in  its  jiorts  to  wa^e  war  on  the  United  States. 

We  hold  that  tins  international  .luty  of  tiie  Queen's  fiovernment  iu  this  respect  was 
above  and  independent  of  the  municipal  laws  of  England.  It  was  a  sovereign  duty 
attachinf;-  to  (ireat  Britain  as  a  sov(^reij;ii  power.  The  niuni"-ipal  law  was  but  a  means 
of  repr<'ssiny  or  pnnishinp;  individual  wrouK-'loers.  The  law  of  nations  was  tln^  true 
and  ju'oper  rule  of  duty  for  the  government.  If  the  municipal  laws  were  defective, 
that  was  a  domestic  inconvenieiu;e,  of  concern  only  to  the  local  government,  and  for  it 
to  remedy  or  not  by  suitable  le<;islation,  as  it  pleas(!d.  But  no  sovereiffu  power  can 
rij;htfnlly  plead  the  defects  of  its  own  domestic  penal  statutes  as  Jnstilication  or 
extenuation  of  an  international  AMonjj;  to  another  sovereijjii  power.  When  the  dt^feets 
of  the  existin<;  laws  of  Parliament  iiad  become  ai)i)arent,  the  Government  of  the  United 
States  earnestly  entreated  the  (Queen's  minister  to  provide  the  reiinired  remedy,  as  it 
would  have  been  easy  to  do  by  a  proper  act  of  I'ai'liameut ;  but  this  the  Queen's  yovern- 
meiit  refused. 

The  I'uited  Spates,  at  an  early  day  in  their  history,  had  si^t  the  example  of  repressiufj 
violations  of  nei.tr„!ity  fo  the  i>re_jndice  of  (Jreat  Britain  by  their  own  authority,  ami 
in  the  <Hschar<re  of  their  own  national  duty,  without  waitiiifj;  for  the  assistance  of  nni- 
nicipal statute.  Th(\v  afterward  euacttil  such  statutes  for  tlieir  own  convenience!,  and 
as  attestation  of  their  good  faith  toward  other  mitions.  And  on  sjjecial  occasions, 
when  defects  wcmc  perceived  in  such  laws,  we  enacted  new  ones  to  meet  the  eas",  not 
dei'ining  that  such  legislation  was  derogatory  to  our  ]>ublic  dignity  ;  but,  on  the  con- 
trary, conceiving  that  in  so  doing  we  best  consultitd  the  highest  dictates  of  mitional 
dignity,  self-respect,  and  public  honor.  Ami  it  Great  Britain  had  so  nmhirstood  her 
mitional  duty  on  this  occasion,  she  would  li.ive  done  mncli  to  save  the  two  countries 
from  the  juesent  controversy  and  all  its  possililc  conseciuenet^s. 

Once  before,  in  its  intercourse  with  the  UiuumI  States,  the  Queen's  government  had 
fallen  into  the  error  of  assuming  that  municipal  laws  loustitute  the  measure  of  intisr- 
national  rights  and  obligations  ;  that  is  to  say,  when  olHcial  agents  of  the  British  go%'- 
ernment  attemitted  to  enlist  military  recruits  in  the  neutral  countries  of  Prussiii,  the 
UnitiMl  States,  ami  elsewhere,  for  service  against  Itussia,  on  the  hyjtothcsis  that,  if  the 
j)rohibitionsofnitinieipal  law  could  be  evaded,  that  would  sutlico,  overlooking  the  par- 
umount  consideration  of  the  respecit  due  to  the  sovereign  rights  of  the  m-ntral  pow(sr. 

So,  on  the  present  occasion,  tiu)  Queen's  ministers  seem  to  have  committed  the  er- 
ror of  assuming  that  they  needed  not  to  look  beyond  tht^r  own  local  law,  enactiMl  for 
their  own  domestic  conveniiMuu',  and  might,  under  cov(t  of  the  dilici(Miciesof  that  law, 
disregard  their  sover(<igu  duties  toward  another  sovereign  ')wer.  Nor  was  it,  in  our 
judguuuit.  any  afhxpiate  excuse  for  the  Queen's  ministers  to  [)roft!Ssextr«uue  tendeI•Ul^ss 
of  jtrivate  lights,  or  apprehension  of  actions  for  damages,  in  case  of  any  attempt  to  ar- 
rest the  many  ships  which,  either  in  England  or  Scotland,  wore  with  ostentatious  pub- 
licity being  constructed  to  criiis*!  against  tht)  UuitiMl  States. 

tturely,  that  was  uu  imaginary  dilliculty  ;  or  if  a  real  one,  it  presented  the  cloctiou 


*r  of  Napo- 
lit.H  ofnt'ii- 
,  of  solemn 
at  W!ir,  nor 
Is  of  (iient 
wliieli  tilie 
r  nu'icliant 
ary  niaiino 
tied  out  in 
nanni'i-  tlio 
tain  wliicli 
I's.  In  tins 
•r»i  pronijit, 
ional  amity 
neutrality  ; 
tilt)  wronjis 
ronfis  wero 
boast,  even, 

nioipal  law 
ti'<l  (lid  not 
devices  of 
ts  of  Eny- 
ninth  with 
t,  whi'*!  tho 
iii;„-':t  havt» 
I  arm.,,  .is  if 
constructed 

respect  was 
i'reiH,n  duty 
lut  a  means 
,as  the  true 
i^  defective, 
:,  and  for  it 
power  can 
iiication  or 
the  defects 
the  United 
medy,  as  it 


repressing 
hority,  and 
nco  of  niu- 
lionce,  and 
1  occasions, 
Hi  cas",  not 

in  the  coii- 
of  national 

rstood  her 
D  countries 

iment  had 
e  of  inter- 
h'itish  gov- 
Miissia,  tho 
that,  if  tho 
ii;^  the  par- 
i;il  power, 
ted  the  er- 
■iiacttMl  for 
rtliat  law, 
i  it,  in  our 
teiideriit^HH 
Hiipt  to  ar- 
it  ions  pub- 
he  clectiou 


■F-/} 


GENERAL   APPENDIX. 


333 


hetween  a  serious  eomidication  of  relations  with  the  I'uited  States  and  the  hazard  of 
a  lejfal  eoiitlict  with  .John  Laird  and  Ciiarhis  Kulin  Prioieau. 

Hut  till-  (i.>V4'riiiiieiitof  tiu)  United  States  lias  never  biM-ii  able  toseo  the  force  of  tliis 
allej^ed  dil'lii'uliy.  Tlu'  eoinmon  law  of  lv;;jlaiid  is  thi)  coiniiion  law  of  the  United 
States.  !n  licith  cDiitifries,  and  certainly  in  Kiij>land,  reviMiue  seizures  are  made  daily, 
aii«l  slii[)s  pre\fnted  iVoin  f^oiiif;  to  sea  on  much  less  cause  of  suspicion  than  attached 
to  the  susjtecled  sliip«  o»'  the  confederates. 

In  both  countries,  and  not  least  in  Kii^^Iand,  the  ])revioiis  order  of  the  ffovernment, 
or  its  sul)se(iui'iit  approval,  covers  the  acts  of  the  suliordinate  otl".  ?s.  In  Itntli  coun- 
tries, orif  mit  ill  l']ii;^Iaiid  assuredly  in  the  Unite<l  States,  under  munieipil  laws  in  this 
behalf  substantially  the  same,  the  (fi>verniiieut  Itnds  no  dilliculty  in  airestini;  sliips 
charjfcd  with  ictiial  or  intended  vitdation  of  the  sovereign  rights  or  neutral  tluties  of 
the  States. 

Signal  examiiles  of  this  occur  in  the  history  of  the  United  States.  Thus,  during  the 
late  war  between  Great  Hritaiii  and  Itiissja,  on  complaints  with  aHidavits  being  tihid 
by  till!  Hritisn  v-onsul  at  New  Vovk,  charging  that  the  liark  Maury  was  lieing  eipiipped 
there  as  a  belligerent  cruiser,  and  this  on  far  less  evidence  than  that  which  the  xViueri- 
can  consul  at  Mverpool  exhibited  against  the  Alabama,  tl  •;  bark  Maury  was  arrested 
within  an  hour  by  ttdegraphic  order  from  Washington. 

Other  examples  of  tlit;  same  decision  and  [n'oinptitude,  in  inaintonanee  of  the  sover- 
eign rights  and  disehargt;  of  the  neutral  iliUit^s  of  the  United  States,  have;  oceuried,  as 
is  well  known,  under  both  the  last  ami  present  administrations. 

Nay,  at  t;v<'iy  period  of  our  history,  tlu^  (Jovernment  of  the  L'^nited  States  has  not 
been  content  with  preventing  the  departure  of  ships  fitted  out  in  violation  of  neutral- 
ity, and  of  putting  a  stop  to  military  I'ecruitiiients  and  expeilitions  of  the  same  nature, 
but  has  further  manifested  its  good  fairh  and  its  resi>ect  for  its  own  sovereignty  ami 
laws  Viy  pi'os(H!Uting  (.'riminal'.y  the  guilty  parties.  Examples  of  thisoccur  in  the  early 
stages  of  the  war  of  the  French  revtdiition,  on  oc(;asions  of  the  insurrection  of  tho 
Sitanish-Aiiieiican  continental  ]U'ovinees  and  cd' revolutionary  movo'iieiits  in  the  Span- 
ish-American re|)ublics,  and  on  various  other  occasions,  incliuling  the  existing  insur- 
rection in  Cuba. 

Ibit  although  such  acts  of  violation  of  law  were  freipuMit  in  Great  Ib'itain,  and  siis- 
ceittible  of  complete  technical   piool".  notorious,  llauuted  dire(!tly  in   the  face  of  the 
M"orM,  varnished  over,  if  at  all,  with  tlie  shallowest  pretext  of  deception,  yet   no  el'i- 
cien    ste)»  appears  to  have  been  taken  by  the  iiritish  government  to  I'litbice  the  exe- 
cuti(m  of  its  nriiniei|>al  lawsor  to  vindicatiMlie  majesty  of  itsontragi-d  sovereign  powtsr. 
And  till!  Government  of  the  United  States  cannot  believe — it   would  eom^eive  itself 
wanting  in  respect  for  Great  Ib'itain  to  impute — that  the  (Queen's  ministers  are  so  much 
liainpered  by  judicial  difliciilties  that  the  local  administration  is  thus  reduced  to  siudi 
a  state  of  legal  iinpoteney  as  to  deprive  the  govtunment  of  cai>acity  to  uphold  its  sov- 
ereignty against  local  wrong-doers,  or  its  neutrality  as  regards  other  sovereign  power^f. 
If,  indeed,  it  were  so,  thi;  causes  of  reclamation  on  the  part  of   the   United  States 
Avouhl  only  be  the  more  positive  and  sure;  for  the  law  of  nations  assumes  that  each 
government  is  ciipalde  of  discharging  its  international  obligations;  and,  perchance,  if 
it  be  not,  then  the  aliscnce  of  such  capability  is  itself  a  specific  ground  of  responsi- 
bility for  coiise(|ue!ices. 

Hut  the  (Queen's  government  would  not  be  content  to  admit,  nor  will  the  Govern- 
ment of  the  United  States  presuiiK!  to  iin]iute  to  it,  such  [.olitical  oigaiiizaf ion  of  the 
Ibitish  empire  as  to  imply  any  want  "f  legal  ability  on  its  part  to  disdiarge,  in  the 
amplest  manner,  all  its  duties  of  sovei  -i'tnty  and  amity  toward  other  powers. 

It  remains  only  in  this  relation  to  lefe  ■  to  one  other  point,  namely,  the  i|iiestion  of 
neijJiiU'Uiv ;  neglect  on  the  part  of  otMc(i>  of  the  Iiritish  government,  whether  superior 
or  suliordinate,  to  detain  confederate  cruisers,  ami  especially  the  Alabama,  the  most 
successful  of  the  depredators  on  the  com  nercc  of  the  L'nitiMl  States. 

Oil  this  point  the  I'residcnt  conceiveit  that  little  needs  now  to  be  said,  for  various 
cogent  reasons. 

E'irst,  the  matter  has  been  exhaustively  discussed  already  by  this  Department,  or  by 
the  successive  American  niinisters. 

Then,  if  the  (|iiestion  of  iii'gligtMico  be  discussed  with  frankness,  it  must  be  treated 
in  this  instance  as  a  case  of  extreme  negligeiuH',  which  Sir  William  .Tones  has  t.anght 
us  to  regard  as  e(piivalcnt  or  approxiimite  to  evil  intention.  Tim  (piestion  of  negli- 
gence, thercfere,  cannot  be  presented  without  danger  of  thought  or  language  disre- 
spectful toward  the  Queen's  ministers,  and  the  Presitleiit,  while  jturposing.  of  course, 
us  his  sense  of  duty  rcipiires,  to  sustain  the  rights  of  the  United  States  in  all  their  ut- 
most amplitude,  yet  intends  to  speak  and  act  in  relation  to  (ireat  Mritaiii  in  the  saniu 
spirit  of  international  respect  which  he  <'xpects  of  her  in  relation  to  the  United  States, 
and  lie  is  sincerely  desirous  that  all  discussions  lietwecn  the  governments  may  be  so 
conducted  as  not  oidy  to  preveii'     iiy  aggravation  of  existing  dilfereiiees,  but  to  tend 


to  such  reasonable  and  am 


icabli 


■termination  as  best  becomes  two  gnat  nations  of 


couimou  origin  und  conscious  dignity  ami  strength. 


334 


GENERAL   APPENDIX. 


i 

! 

1       ^ 

' 

1         I 

'l-i 
I  - 

ii 


n 


1 


'  *'4 


I  assume,  therefore,  pretermitting  detailed  discussion  in  this  respect,  that  the  ne~!i- 
gonce  of  the  oHit-ers  of  the  British  government  in  the  matter  of  the  Alabama,  at  h'ast, 
was  gross  and  ii>excusable,  and  such  as  indisputably  to  devolve  on  that  government 
full  responsibility  for  all  the  depredations  committed  by  her.  Indeed,  this  conclusion 
seems  in  eliect  to  be  conceded  in  Great  Britain.  At  all  events,  the  United  States  con- 
ceive that  the  proofs  of  responsible  negligence  in  this  matter  are  so  clear  that  no  room 
remains  for  debate  on  that  point,  and  it  should  be  taken  for  granted  in  all  future  uego- 
tiatioua  with  Great  Britain. 

It  is  impossible  not  to  compare  and  contrast  the  conduct  of  the  States  General,  as 
regards  Great  Britain  on  occasion  of  the  revolt  of  the  British  colonies,  with  that  of 
Great  Britain  as  regards  the  insurrection  in  the  Southern  States.  No  fleets  were  fitted 
out  by  America  in  the  ports  of  the  Netherlands  to  prey  on  the  commerce  of  Great 
Britain.  Only  in  a  single  instance  did  American  cruisers  have  temporary  harborage 
in  the  Texel.  Year  after  year  the  exports  of  munitions  of  war  for  the  Netherlands  were 
forbidden  by  the  States  General,  the  more  completely  to  fulfill  their  duty  of  amity  and 
neutrality  toward  Great  Britain  ;  but,  nevertheless,  Great  Britain  treated  a  declaration 
of  neutrality  by  the  T-^'ites  General,  and  the  observance  of  that  «leclaration,  as  a  sutfl- 
cient  cause  of  war  aguiust  the  Netherlands;  prior  to  which  the  British  govoniment 
continually  complained  .  f  the  occasional  supplies  derived  by  the  colonies  from  the 
island  of  St.  Eustatius.  How  light,  in  this  respect,  would  have  been  the  burdens  of 
the  United  States  during  the  late  insurrection  if  British  aid  had  been  couliued  to  a 
contraband  commerce  between  the  insurgents  and  the  port  of  Nassau. 

Not  such  is  the  complaint  of  the  United  States  against  Great  Britain.  We  complain 
that  the  insurrection  in  the  Sonthern  States,  if  it  did  not  exist,  was  continued,  and 
obtained  its  enduring  vitality,  by  means  of  the  resources  it  drew  from  Great  Britain. 
We  complain  that  by  reason  of  the  imperfect  discharge  of  its  neutral  duties  on  the  part 
of  the  Queen's  government,  Great  Britain  became  the  military,  naval,  and  financial 
basis  of  insurgent  warfare  against  the  United  States.  We  complain  of  the  destruction 
of  our  merchant-marine  by  British  ships  manned  by  British  seanie:;,  armed  with 
British  guns,  dispatched  from  British  dock-yards,  sheltered  and  harbored  in  British 
pcuts.  We  complain  that,  by  reason  of  the  policy  and  the  acts  of  the  Queen's  minis- 
ters, injury  incalculable  was  inflicted  on  the  United  States. 

Nevertheless,  the  United  States  manfully  and  resolvedly  encountered  all  the  great 
perils  and  dilliculties  of  the  situation,  foreign  and  domestic,  aiul  overcame  them.  We 
endured,  with  proud  i)atience,  the  manifestation  of  hostility  there,  where  we  iiad  ex- 
pected friendship,  in  England,  the  protagonist  of  the  Jibolition  of  negro  servitude,  in 
order  to  j)erpetuat()  wliicli  the  Southern  States  had  seceded  from  the  IJnion.  We  en- 
tered on  a  great  war,  involving  sea  and  land;  we  marched  to  the  field  hundreds  of 
thousands  of  soldiers  and  expended  thousands  of  millions  of  treasure  for  their  supi>ort ; 
we  lavished  the  blood  of  our  bravest  and  best  in  battle,  as  if  it  were  but  water;  we 
submitted  to  all  privations  without  a  murmur;  we  staked  our  lives,  our  fortunes,  and 
our  honor  on  the  issue  of  the  combat ;  and,  by  the  l)lessing  "f  (Jod,  we  came  out  of  the 
deadly  struggle  victorious,  and  with  courage  proved,  strength  unimpaired,  jjovver  aug- 
mented, and  our  place  fixed  among  the  nations  second  to  none,  we  nuiy  without  pre- 
sumption say,  in  the  civilized  world.  Providence  had  smiled  on  our  sacrifices  and  our 
ext-rtions ;  and  in  the  hour  of  supreme  triumph  we  felt  that,  while  mindful  of  good- 
will shown  us  by  friendly  powers  in  the  hour  of  trial,  we  could  afford  to  account  in 
moderation  with  others,  which,  like  Great  Britain,  had,  as  we  thought,  speculated  im- 
providently,  and  to  their  own  discomfiture,  on  the  expected  dismemberment  and  down- 
fall of  the  great  American  republic. 

As  to  Great  Britain,  we  had  special  and  peculiar  causes  of  grief.  She  had  proma- 
tnnsly,  as  \\v  deemed  it,  and  without  adeijuate  reason,  awarded  the  status  of  belliger- 
ency to  our  insurgents.  But  this  act  of  itself,  and  by  its  inherent  nature,  was  of  neu- 
tral eoloi',  and  an  act  which,  howsoever  we  might  condemn  it  in  the  particular  case,  we 
could  not  deny  to  be  of  the  conipeten(!y  of  a  sovereign  state.  Other  Euro|)ean  govern- 
ments also  )-ecogni/ed  the  belligerency  of  the  insurgents;  but  Great  Britain  ahme  had 
translatiMl  a  nu^ivsure  indefinite  of  itself  into  one  of  (Usfinit*!  wrong  to  the  United  States  ; 
as  evinced  by  the  constant  and  etlicient  aid  in  ships  and  munitions  of  war  which  she  fur- 
nished the  confederates,  and  in  the  permission  or  negligence  which  enabled  confederate 
cruisers  from  her  pints  to  prey  on  tla;  commerce  of  the  United  States.  Great  Britain  alone 
had  founded  on  that  recognition  a  systematic  maritime  war  ag.iinsf  the  Uniteil  States. 
And  this,  i(i(tt'i<;r  the  establishment  of  a  slave  government;  as  to  which  Mr.  Bright  might 
well  say,  "  We  supply  the  sl'ips ;  we  suj)ply  the  arms,  the  nuinitions  of  war ;  we  give  aid 
and  comfort  to  tlie  foulest  of  crimes;  EiijiliHlimni  «/(/^doit."  Thus,  what  in  France,  in 
Spain,  as  tlii-irsultseiiuiuitconductshowed,  had  been  but  an  untimely  and  ill-judged  act  of 
political  luaiiifrstation,  had  in  England,  as  her  subsequent  conduct  showed,  been  a 
virtual  act  of  war.  We  refiecled  that  the  eonfeilerates  had  no  ships,  no  means  of 
building  .sliips,  no  mechanical  appliances.no  marine,  no  legal  status  on  the  sea,  no  open 
8ea-p(Mts,  no  |ti  pssible  courts  of  prize,  no  doniest  ic  comnnind  of  the  instrnments  and  agen- 
cies of  mtultiii  maritime  warfare.     Wc  a&Ued  ourselves  what  would  the  Queen's  govern- 


t  the  ne;;!!- 
na,  !it  IciiHt, 
gov«>nuncnt 
I  concliiMion 
States  con- 
lat  no  room 
fiitiiro  uego- 

Guiieral,  as 
witli  tlittt  of 
i  were  fitted 
:ce  of  Great 
y  harborafje 
trlands  were 
if  amity  and 
,  declaration 
n,  as  a  snfTi- 
government 
58  from  the 

I  burdens  of 
ouiiued  to  a 

Ve  complain 
itinued,  and 
eat  Britain. 
>  on  the  part 
nd  (inancial 
destruction 
irnied  with 
id  in  British 
L'en's  minis- 

II  the  great 
)  them.     Wo 

we  iiad  ex- 
lervitnde,  in 
»n.  We  en- 
hundreds  of 
eirsnpitort ; 
;  water;  we 
)rtunes,  and 
e  out  of  the 

l)owor  ang- 

ithout  pre- 
[ioes  and  our 
hi  of  good- 

ac(;ount  in 
culated  ira- 
;  aud  down- 

liad  proma- 
of  belliger- 
kvas  of  neu- 
l:ir  case,  we 
iin  govern- 
u  alone  had 
itfd  States  ; 
lich  she  fur- 
coiiftHlerate 
Iritain  alone 
lited  States, 
rijllit  might 
we  give  aid 
I  France,  in 
idgt'd  act  of 
ved,  Vieen  a 
>  means  of 
»'ii,  no  open 
tsandngeii- 
en's  govern- 


GENERAL   APPENDIX. 


335 


ment  have  said  if  the  United  States  had  awarded  the  rights  of  belligereney  to  insur- 
gents in  India,  or  in  Ireland,  in  the  same  circumstances,  that  is,  on  the  occurrence  of 
a  single  act  of  rebel  hostility,  and  had  bestowed  upon  them  their  ouly  means  of  mari- 
time as  well  as  territorial  warfare  against  Great  Britain  f 

In  truth,  while,  in  the  hour  of  tiieir  great  triumph,  the  United  States  wore  i^hank- 
fully  inclined  to  sentiments  of  nuxleration,  both  at  home  and  abroad — for  at  home  no 
man  has  i^itfered  death  for  political  (causes— were  the  more  inclined  to  moderation,  es))e- 
cially,  as  regards  Great  Britain,  in  view  of  the  very  enormity  of  the  wrongs  we  had  sus- 
tained, ,',nd  the  consequent  dilHculty  of  measuring  the  reparation  due,  even  if  sincerely 
proffered  by  the  Queen's  government — we  desired  no  war  with  England;  we  shrank 
from  the  thought  of  another  lustrum  of  fratricidal  carnage,  like  that  through  which 
we  had  just  passed,  with  no  change  iu  the  conditions  of  war  but  the  substitution,  on 
one  side,  of  misguided  Englislunen  in  the  place  of  misguided  Americans.  We  p.eferred, 
if  possible,  to  liud  s(uue  satisfaction  of  our  great  grievances  by  peaceful  means,  consist- 
ent alike  with  the  honor  of  Great  Britain  and  of  the  United  States.  The  iulluence  of 
this  condition  of  mind  is  apparent  in  all  the  discussions  of  the  subject  by  or  under  the 
instruction  of  this  Department  during  preceding  administrations  of  the  Government. 
It  resulted  in  earnest  efforts  on  our  part  to  determine  the  controversy  by  arbitration  iu 
the  interest  of  peace  and  of  international  good-will,  which  etfortd,  if  promptly  met  by 
the  Queen's  ministers  iu  the  spirit  iu  which  they  were  nuule,  wou  (1  long  since  have  re- 
moved the  present  controversy  from  the  field  of  diplomacy,  aud  eftectually  harmuuized 
the  relations  of  the  United  States  with  Great  Britain. 

But  the  amicable  advances  of  the  United  St>:tes  to  dispose  of  the  question  by  arbitra- 
tion were  at  the  start,  aud  persistently  long  afterward,  met  by  Lord  Kussell,  m  the 
name  of  the  Queen's  government,  with  subtleties  of  reservation  and  exception,  the 
effect  of  whicli  would  have  been,  instead  of  closiui^  up  the  controversy,  to  leave  us  iu 
a  condition  worse  than  before,  and  more  perilous  to  the  cause  of  peace. 

The  Government  of  the  United  States  has  never  been  able  to  appreciate  the  force  of 
the  reasons  alleged  in  support  of  such  reservations  aud  exceptions.  Wlien  one  power 
demands  of  another  the  redress  of  alleged  wrongs,  i;ud  the  latter  entertains  the  idea  of 
arbitration  as  the  means  of  settling  the  question,  it  seenu  irrational  to  insist  tiiat  the 
arbitration  shall  be  u.  (pialitied  aud  limited  one,  through  apprehensions  lest,  i»eradveu- 
ture,  tliere  niiglit  thurf  be  implicati(Mi  that  such  wrongs  had  been  comniitVed  by  inten- 
tion, aiitl  that  such  implication  would  bt^  injurious  to  the  honor  of  the  wrong-doing 
government.  On  these  i»icmiscs  arbitration  nuiy  be  the  means  of  adjusting  iniinat*  rial 
international  wrongs, but  uot  of  material  ones;  that  is  to  say,  if  the  grifvaiiccs  be  seri- 
ous, the  two  nations  must  of  necessity  go  to  war,  while  ueither  desires  it,  which  would 
be  an  absurd  conclusion. 

Lord  Stanley  ami  Lord  Clarendon  a])pear  to  have  seen  this,  and  therefore  to  have 
regarded  tlie  particular  (luestion  with  more  correct  estiinatioii  of  its  incidents  than  Lord 
Russell,  an<l  thereupon  to  have  admitted  as  theory  comprehensive  arbitration  coiiceru- 
iug  all  (|uestion8  between  the  governments. 

But  tlie  convention,  which  iu  this  view  was  negotiated  by  the  Earl  of  Clarendon  and 
Mr.  Keverdy  .Johnson,  did  uot  prove  satisfactory  to  tlie  Senate  of  the  United  States. 

It  is  well  known  to  the  government  of  Great  Britain  that  the  President  and  the  Sen- 
ate of  the  United  States  aio  distinct  powers  of  the  Government,  associated  in  the  con- 
clusion of  treaties  aud  iu  the  ap]>ointnient  of  public  ofticers,  but  not  diipeiKliMit  one  on 
the  other,  nor  of  necessity  entertaining  the  same  opinion  on  public  (luestioiis.  Each 
acts  on  appropriate  convictions  of  duty  aud  of  rigli»^  aud, the  Sbuato  has  the  same  abso- 
lute power  to  reject  a  treaty  as  the  Presidfut  has  i«i  negotiate  one. 

Of  course  it  is  not  necessarily  iucumltonton  the  President  to  express  approval  or  dla- 
apjiroval  of  an  act  of  the  Senate. 

But  the  President  deems  it  due  to  the  Senate,  to  himself,  aud  to  the  sabjuct,  to  declare 
that  he  concurs  with  the  Senate  iu  disapproving  of  that  conveuticm.  His  own  partic- 
ular reas<Mis  for  his  conclusion  are  sulheiently  apparent  in  this  dispatch.  In  addition 
to  these  general  reasons,  ln'  thinks  the  provisioiisof  the  convention  were  iuadetiuate  to 
I)ri>vide  reparation  IVu'  the  United  States  in  the  manner  and  to  the  degree  to  which  he 
considers  the  United  States  entitled  to  redress.  Other  and  8i)ecial  reasons  for  the  same 
conclusiuus  have  been  explained  in  a  previous  dispatch — such,  namely,  as  the  time  and 
circumstances  of  the  negotiation,  the  complex  character  of  the  jjroposed  arbitration,  its 
chance,  agency,  and  results,  aud  its  failure  to  determine  any  principle,  or  otherwise  to 
fix  on  a  stable  fouinlatiou  tlie  relations  of  the  two  governments. 

The  President  is  uot  yet  prepareil  to  itroiuuiuce  tui  the  (lUestion  of  the  iiiilemnities 
■which  he  thinks  due  by  Great  Britain  to  individual  citizens  of  the  United  States,  for 
the  destruction  of  their  property  by  rebel  cruisers  fitted  out  in  the  jiortsof  (iieat  Britaiu. 

Nor  is  he  now  prepared  to  8i)eak  of  tlie  leparatinii  which  he  thinks  due  by  the  British 
goTeruuient  for  the  larger  account  of  the  vast  ttutional  injuries  it  hivs  inllicted  on  the 
United  States. 

Nor  »loes  he  attempt  now  to  measure  the  relative  effect  of  the  various  causes  «»f  injury, 
as  whether  by  untimely  recognition  of  belligerency,  by  suffering  the  fitting  out  of  rebel 


■^HS 


336 


GENERAL   APPENDIX. 


n-' 


m- . 


'r>\ 


cniistiri,  or  by  tho  supply  of  sliips,  arms,  and  muiiit'  ms  of  war  to  tlio  confoderafes,  or 
otlicrivisc,  ill  wliiitHocviu-  iiiaiiiior. 

Nor  (Iocs  it  fall  within  tin;  scopo  of  this  dispatch  to  discuss  tho  important  cliaiiLjiis  in 
the  riih's  (»r  piililic  law,  the  dissirahhiiioss  of  whi(!li  has  l)con  di'inoristralcd  hy  tlir  iiH;i- 
dcnts  of  tln^  last  fi'w  yoars  now  iindor  consideration,  and  whicli,  in  vii-w  of  tlu!  iiiari- 
tinie  proinintMicc  of  (treat  Hritain  and  the  IJiiitod  -States,  it  would  belit  thnni  to  mature, 
and  propose  to  the  otln-r  states  of  Christendom. 

All  thes(i  are  siil»j(M;ts  of  future  consideration  ;  which,  wlion  the  time  for  action  shall 
arrive,  the  President  will  consider  with  sincere  and  earnest  desire  that  all  ditfereiKrcfs 
between  the  two  nations  ma/  be  adjusted  amicaltly  and  compatil)ly  with  the  honor  of 
oaeli.  and  to  the  promotion  of  future  concord  between  them;  to  which  end  he  will 
sjiare  no  eti'ort  within  the  range  of  his  supromo  duty  to  the  rights  and  interest  of  tho 
United  States. 

At  the  present  stage  of  the  controversy,  tho  solo  object  of  tho  President  is  to  state 
the  position  and  maintain  tho  attitude  of  the  United  States  in  tho  various  relations  and 
aspects  of  this  grave  controversy  with  Cireat  Britain.  It  is  the  object  of  this  i)aper 
(which  you  are  .it  iiiierty  to  read  to  Lord  Clarendon)  to  state  calmly  and  dispassion- 
ately, with  a  more  unreserved  freedom  than  might  be  used  in  one  atldressed  directly  to 
till!  Queen's  government,  what  this  Government  seriously  considers  the  iiijiiriesshe  has 
snrteicd.  It  is  not  written  in  the  nature  of  a  claim,  for  the  United  States  now  make 
no  demand  against  her  Majesty's  government  on  account  of  the  injuries  they  feel  that 
they  have  siistaiiied. 

Although  the  United  States  are  anxious  for  a  settlementon  a  liberal  and  comprehen- 
sive basis  of  all  the  (juestions  which  now  interftsre  with  the  entirely  cordial  relations 
M'hich  they  desire  to  exist  bet.vcen  the  two  governments,  they  do  not  now  propose  or 
desire  to  set  any  time  for  this  settlement.  On  the  contrary,  they  prefer  to  h^ave  that 
question,  and  also  the  more  important  question  of  tho  nutans  and  miithod  of  removing 
the  causes  of  complaint,  of  restoring  the  much  desired  relations  of  perfect  cordiality, 
and  the  previMiting  of  the  probability  of  like  questions  in  the  future,  to  the  considera- 
tion of  li(!r  Miijesty's  government.  They  will,  however,  be  ready,  wlieiiever  her  Maj- 
esty's government  shall  think  tho  proper  time  has  come  for  a,  renewed  negotiation,  to 
entertain  any  pro|iosition  which  that  government  shall  think  jirojier  to  present,  and  to 
apply  to  such  projiositions  their  earnest  and  sincere  wishes  and  endeavors  for  a  solu- 
tion hmiorable  and  satisfactory  to  both  countriea. 
I  am,  sir,  your  obedient  servant, 

HAMILl'ON  FISH. 


[Inclosnre  in  No.  7.] 

Observations  on  Mr.  Fisli's  tlispnteh  to  Mr.  Motley  of  Scjytember  25,  1869, 
respecting  the  Alabama,  ifcc,  claims. 


I.— Thk  Queen's  proclamation  of  neutrality. 

Mr.  Fish  recapitulates  the  arguments  previously  used  by  Mr.  Seward  as  to  the  "  pre- 
cipitate recognition  "  of  belligerent  rights,  which,  he  says,  "  appears  in  its  having  been 
determined  on  the  ()th  of  May,  four  days  (trior  to  the  arrival  in  London  of  any  olticial 
knowledge  of  the  President's  proclamation  of  the  19th  of  April,  18(51."  *  #  * 
*  and  "signed  on  tho  i:Uh  of  May — the  very  day  of  the  arrival  of  Mr.  Adams,  the 
new  American  minister,  as  if  in  the  particular  aim  of  forestalling  and  preventing  ex- 
planations on  the  part  of  the  United  States." 

The  facts  are— 

The  President's  proclamation  of  blockade  was  published  April  19.  Intelligence  of 
its  issue  wa.s  received  by  telegraph  (see  tho  Times)  on  the  2d  of  May. 

It  was  iiublished  in  tho  Daily  News  and  other  papers  on  the  3d  of  May.  Mr.  Seward, 
in  his  dispatch  to  Mr.  Adams  of  the  I2th  of  January,  18G7,  says,  "  it  reached  London  on 
the  ;{d  of  May." 

A  copy  was  recoived  officially  from  her  Majesty's  consul  at  New  York  ou  the  5th; 
another  copy,  from  Lord  Lyons,  on  tho  10th. 

It  was  communicated  otUcially  by  Mr.  Dallas  to  Lord  Russell  on  the  11th,  with  a 
copy  of  a  circular  from  Mr.  Seward  to  the  United  States  ministers  abroad,  dated  tho 
20th  of  April,  calling  attention  to  it,  and  stating  tho  probability  that  attempts  would 
be  made  to  "tit  out  privateers  in  the  ports  of  England  for  the  purpose  of  aggression  ou 
the  commerce  of  the  United  States." 

The  reason  of  the  delay  in  receiving  the  copy  from  Washington  was  in  itself  a  proof 
of  the  existence  of  civil  war,  arising,  as  it  did,  from  the  commuuicatiou  betweeu 


(loratos,  or 

(■Ii(inii;o8  in 
y  the  iiici- 
'  tht!  iiiiiri- 
to  luaturo, 

ction  shall 
(lirtVrt'iuioH 
10  hoiutr  ot' 
11(1  ho  will 
(rest  <»f  tlu) 

is  to  state 
latiuns  and 
tliis  paper 
•  lispassiou- 
[  direetly  to 
rit'sslie  has 
now  iiiako 
jy  feel  that 

LOinpreheii- 
al  relations 

propose  or 

leave  that 
if  reuiovinf^ 

cordiality, 
!  considera- 
er  her  MaJ- 
;otiation,  to 
sent,  and  to 

for  a  solii- 


r)N  FISH. 


GENERAL   APPENDIX. 


337 


25,  18(59, 


to  the  "  pre- 
laviiiir  heeu 

any  ofticial 

jf         *         ^ 

Adams,  the 
venting  e-x- 


telligeiice  of 

Mr.  Seward, 
Londou  ou 

m  the  5th ; 

llth,  with  a 
I,  dated  the 
nipts  would 
fgressiou  ou 

;self  a  proof 
uu  betweuQ 


Washington  and  Baltimore  being  cut  olV,  in  consequence  of  the  confederate   troojis 
threattMiing  tlm  ca|)ital. 

The  preinatureiicHs  of  th((  measure  is  further  shown  by  the  very  teu«)r  of  the  i)rocI»- 
mation:  "Whereas  hostilities  have  unhappily  commeiiceii  between  the  (Jovernnient  ot 
the  United  States  of  Am(!rica  and  certain  States  styling  tliemselvi's  tlu' (.'onfctlerate 
States  of  Ameriea."  Exception  is  also  taken  to  the  use  of  tiie  word  "contest"  as  dis- 
tinct from  "  war." 

It  will  bo  seen,  on  referring  to  the  report  of  tlui  royal  commission  for  inquiring  into 
the  lu'utrality  laws,  (Appendix,)  that  the  form  of  words  used  is  taken  from  previous 
prochunations  :  "Whereas  hostilities  at  thistinu?  exist,"  (.lune  (I,  1H2;?:)  "engaged  in 
a  contest,"  (Septend)er  HO,  IHsJ"),  Turkey  and  Greece;)  "  Whereas  hostilities  have  unhap- 
pily eonuui-nced,"  (May  I'.l,  18")'.),  Austria,  France,  and  Italy.)  The  sanui  form  was 
used  in  the  case  of  Si)aiu  ami  Chili,  (February  (i,  IHfUi,)  and  Spain  and  Pern,  (.March  V.\, 
18(1(5.)  "Hostilities  hav<i  unhai)pily  commenced,"  (Austria,  Prussia.  Italy,  (Jerniunv, 
June  U7,  180(1.) 

The  order  prohibiting  pri"es  from  being  brought  into  Ilritish  i)orts,  for  which  the 
United  .States  Governnu-nt  tlanked  the  IJritish  government,  iis  being  likely  to  give  a 
death-blow  to  privateering,  ipeaks  of  "observing  the  strictest  neutrality  in  the  content 
which  appears  to  be  imminent,"  (June  1,  18f)l.) 

It  is  remarkable  that  in  tht)  case  of  Turkey  and  Greece,  British  subjects  were  warned 
to  respect  "  the  exercise  of  belligerent  rights."  This  is  omitt(;d  in  the  United  States 
case,  the  belligerents  being  spoken  of  as  "the  contending  ])arties." 

T!ie  expression,  "States  styling  themselves  the  Confederate  States  of  America,"  was 
purposely  adopted  to  avoid  the  recognition  of  their  existence  as  independent  States, 
uud  gave  them  great  offense. 

The  French  proclamation  of  the  10th  of  June  has  "la  lutto  cngag(?e  outre  le  (iouv- 
eriujinent  do  I'Union  et  les  Etats  prt^tendent  former  une  Conf<^d<^ration  particuliiro." 

The  Spani.sh  proclanuition,  which  the  Uniti'd  States  minister  at  Madrid  (.see  Diplo- 
matic Correspondence  laid  before  Congr(!Ss,  18(51,  p.  224)  informed  the  Spanish  govern- 
ment "the  Presidtuit  had  read  with  the  greatest  satisfaction,"  issued  on  the  17th  of 
.June,  18(11,  has  "Confederate  States  of  the  South,"  and  uses  the  term  "belligerent" 
three  tiuuis  over. 

Mr.  Fish's  dispatch  states  that  the"assunu)d  belligerency"  was  a  "  fiction,"  the 
"anticipation  of  supposed  belligerency  to  come,  but  which  might  never  have  come  if 
not  thus  anticipat(!d  and  encouragt'd  by  the  Queen's  government." 

What  are  the  facts  ?  A  large  group  of  States,  containing  a  population  of  several 
millions,  and  comprising  a  compact  giiographical  area,  enabling  them  to  act  readily 
in  concert,  had  established  a  dc  facto  government,  with  a  i»r(!sident,  congress,  consti- 
tution, courts  of  justice,  army,  and  all  the  machinery  of  military  and  civil  power. 
They  po.ssessed  thti  j)orts  along  upward  of  '^,000  miles  of  coast;  with  the  excoiition  of 
Forts  Pickens  and  Monroe,  all  the  Federal  jiosts  and  forts  had  l)eon  evacuated,  includ- 
ing Harper's  Ferry,  the  arsenal  of  the  Potomac  Valley.  Fort  Suniter,  the  only 
one  which  had  olfered  resistance,  had  fallen  a  month  previously,  April  13.  The  con- 
federat(!  troops  were  in  occupation  of  the  Shenandoah  lines,  and  threatening  Washing- 
ton. The  confederate  president  had  declared  war,  and  called  for  a  levy  of  3'2,0()0 
troops,  to  which  all  the  seceded  States  had  responded  promptly.  On  the  other  hand, 
the  Federal  President  had  called  for  75,000  volunteers  on  the  l.'ith  of  April,  and  for 
42,000  more  ou  the  3d  of  May  ;  aud  as  fast  as  the  regiments  could  be  armed  they  were 
hurrying  to  the  defense  of  Washington.  The  contending  armies  were,  indeed,  face  to 
face. 

So  much  for  the  hostilities  on  land.  The  operations  at  sea,  in  which  British  interests 
were  more  directly  aflfected,  had  been  carried  on  with  equal  vigor.  Ou  the  17th  of 
April  the  confederate  president  issued  his  proclamation  oflering  to  graut  letters  of 
maniue,  whicli  was  followed,  two  days  afterward,  by  the  Federal  proclamation  of 
blockade.  At  the  date  of  the  Queen's  proclamation  of  neutrality  both  these  had  been 
carried,  or  were  being  carried,  into  eft'cct.  The  Federal  Government  had  instituted 
the  blockade  of  Virginia  and  North  Carolina,  which  was  declared  to  be  eflFectivo  on  the 
30tli  of  April,  and  were  rapidly  dispatching  all  the  merchant- vessels  which  they  could 
procure,  and  which  they  were  able  to  convert  into  ships-of-war,  to  the  blockade  of  the 
other  ports.  The  General  Parkhill,  of  Liverpool,  was  captured  by  the  United  States 
ship  Niagara  while  attempting  to  run  the  blockade  of  Charleston,  on  the  12th  of  May  ; 
and  the  British  vessels  Hilja  and  Moimiouth  warned  off  on  the  same  day.  Confederate 
privateers  were  already  at  sea.  One  was  captured  at  the  mouth  of  the  Chesapeake 
River  on  the  8th  of  May  by  the  United  States  ship  Harriet  Lane.  On  the  l.'>th  the 
Federal  bark  Ocean  Eagle,  of  Rockhead,  Maine,  was  taken  by  the  confederate  priva- 
teer Calhoun  off  New  Orleans.  At  the  same  port  Captain  Semmes  had  already  received 
his  commission,  and  was  engaged  in  the  outht  of  the  Sumter. 

Could  any  explanations  wliich  Mr.  Adams  might  have  had  to  offer  alter  such  a  state 
of  things  as  this  ?    Can  any  other  name  be  given  to  it  than  that  of  civil  .war  ? 

22  H 


f 

,1 


m 


Yii 


%.  ■'« 


3;]8 


GENERAL    APPEXniX. 


It  is  Htiitt'd  iliiit  tlific  was  no  fact  of  contiimrd  ami  (la<;raiif  "  Iinstilities"  to  justify 
the  ail  ion  of  (ircat  Itritaiii  in  isHuin;;  a  |)i'o)'laMiati(iii  of  m-ntiality. 

Mr.  Sfwanl  writin;;  at  tin*  linii',  and  previously  to  tlio  (^ni'cn'M  proclaniatiini,  (May  l,) 
(tliaiaitfiizcd  tlir  itioccfdinKs  of  the  confcdt'iatrs  as  "  open,  lla;frant,  di-udiy  war,"  and 
as  •' civil  war,'' (('on;4,ifss  Papers,  IHdl,  pa^c  ltir>;)  and  in  a  coininnnication  fo  M.  dc 
Tas^ara,  tlic  Sjianish  minister,  reftMieil  to  tiie  opeiations  of  the  Federal  hloclcade  as 
hellil^erent  operations  whieli  would  ho  cairied  ou  witli  due  respeet  to  tho  rijjiits  of 
n(!UlralN. 

,ln<lj;e  IJctts,  Ir  the  eases  i.;  the  Hiawatha,  &c.,  said  :  "I  consider  that  tlie  outbn-ak 
in  j>articular  Status,  as  also  in  tho  confederated  States,  was  un  open  and  llajj;rant  civil 
war.'' 

It  is  also  judieially  decided  hy  the  Suprtniie  Court  of  tlie  United  States,  in  the  cas(; 
of  the  Amy  Warwick  and  other  prizes,  tliat  "the  proclamation  of  MocJtadt!  is  itself  otli- 
cial  and  conclnsiv(!  evidence  tliat  a  state  of  war  existed  whicli  demanded  and  author- 
ized such  a  measure."  Moreover,  tlie  joint  resolution  of  Conj^ress,  in  July,  IHdl,  ai)- 
provin;;  and  contirmin;;;  the  acts  of  the  I'ri'sident,  (Noith  America,  No.  1,  IHIi'i,"  pa<;e 
f)?,)  eonunenees :  "  Whereas,  since  tin^  adjournment  of  Coufjress  on  the  4th  of  March 
last,  a  formidahh^  insurrection  in  certain  States  of  this  Union  has  arrayed  itself  in 
arnu'd  hostility  ;"  and  a  resolution  of  the  House  of  He|»i"sentativcs  of  the  '22<\  of  July, 
I'^lil,  speaks  of  tile  "  present  deplorable  civil  war"  an<'.  of  "tliis  war." 

The  date  at  which  the  civil  war  actively  commen.;ed  has,  therefore,  been  lixed  by 
the  ])ublishcd  dis))atc!u's  of  the  Secretary  of  State,  l»y  procei-dinj^s  in  Conj^ress,  by  the 
ftuuial  jud};ment  of  tin-  United  States  prize-cmuts,  as  well  as  by  tlie  universal  assent 
of  all  tlie  neutral  jtowers  concemed  ;  but  it  is  urj^ed  that,  nevertheless,  then!  was  no 
net  essity  for  (heat  Urifain  to  tak(!  notic(^  of  it,  as  no  sliip  of  the  iiisnrj^ents  had  .tp- 
jieared  in  Ibitisl  jiorts,  no  cidlision  occurred  iit  sea,  nor  did  thi^  nearness  of  (Jreat 
Britiiin  to  the  seat  of  hostilities  comjiel  her  to  act. 

With  rejjard  to  the  latter  point,  it  isdiHicult  to  see  how  one  nation  can  be  much 
nearer  to  another  than  En;;land  to  the  l.'nited  States,  seeing  that  the  British  dominions 
touch  the  I'nited  States  on  two  sides,  while  the  British  islands  of  New  I'rovideiice,  iSce., 
lie  immediately  in  front.  As  to  a  collision  at  sea,  it  was  apparent  that  British  ('omnierce 
must  be  interfered  with  tlui  moment  the  blockade  came  into  oiK-ration,  as  indeed  was 
the  case,  several  British  vessels  having  been  captured  before  there  was  time  for  the 
intelligence  of  tlii'  proclamaticm  of  neutrality  to  reach  America.  As  to  the  arrival  ot 
confederate  ships  in  Britisli  jiorts,  such  ships  were  ailoat  and  mi;;ht  at  any  time  be  ex- 
jicctcd.  As  Mr.  Dana,  in  tiu?  notes  to  the  ei;i;hth  edition  of  Wlieaton.  expresses  it,  (p. 
:?.'>,)  "  it  is  not  lit  that  cases  should  be  left  to  lie  decided  as  they  may  arise,  by  private 
citizens,  or  naval  or  judicial  ottictus,  at  home  or  abroad,  by  sea  or  laud." 

Tlie  British  {fovernment  were  comiielled  to  take  action  of  some  sort.  W'ms  that  !»(;tiou 
really  unfriendly  ;  was  it  intended  to  be  unfriendly  ? 

No  one  who  recollects  what  actually  jiassed,  or  will  ccuisnlt  "Hansard,"  can  supposn 
that  the  iiroclamation  was  intended  to  be  unfriendly.  On  the  contrary,  as  was  stated 
by  Mr.  Forster  in  his  speech  at  Bradfonl,  it  was  absolutely  pressed  upon  the  {joverii- 
iiu'iit  liy  the  friends  of  the  Northern  States,  who  wiae  afraicl  lest  coufederuto  privateerii 
should  be  lifted  out  in  British  ports. 

Nor  was  its  immediate  result  injurious  to  the  Federal  States.  Far  fnmi  beinfj  so,  it 
lejiitimatized  the  captures  of  the  blockading;  squadron,  and,  in  tho  languajje  of  iho 
prize-c(nirt,"estopi)ed"  the  British  merchants,  wIio.^m  vessels  were  seized,  from  makiiijf 
reclamation. 

While  the  intellijfcnce  of  the  issue  of  the  Queen's  jirocl.imatian  was  still  fresli,  and 
almost  immediately  after  heariiij;- of  the  French  and  Spanish  jiroclamations of  neutral- 
ity, the  President,  in  his  messajje  of  the  4th  of  July,  Iritil,  stated  that  ho  was  *'  happy 
to  .say  that  the  sovereij^nty  and  riijhts  of  the  United  States  are  now  practically  re- 
spected liy  foreiirii  jiowers,  and  a  general  sympathy  with  the  country  is  manifested 
tlii(Mii;hout  the  world." 

Does  any  one  really  believe  that  the  Queen's  proclamation  in  the  very  least  intluenced 
the  movements  of  the  confederate  armies?  All  tim  preparations  for  war  had  been 
made  loiijj  bef(ue,  munitions  collected,  troojis  levied,  and  {generals  appointed.  The 
Iiroclamation  reached  America  at  the  end  of  May,  by  which  time  the  confederates  had 
taken  uj»  their  position  on  the  Upper  Potomac,  and  the  Federals  had  occupied  Alexan- 
dria, in  Virt^inia,  with  a  forci;  of  tliirteeu  tiiousaml  men.  May  '24. 

The  armies  on  both  sides  were  in  motion  ;  skirmishes  were  daily  ocourriufj;;  engajje- 
ments  took  place  at  Little  Bethel  ou  the  It>th  of  June,  at  Uartlia^je,  Missouri,  on  the 
f)th  of  July,  and  at  Centreville  on  tho  IHth,  followed  by  the  great  battle  of  Manassas 
Junction  on  the  tilst.  Can  any  (uio  .suppose  that  if  the  proclamation  had  not  been 
issued  that  battle  would  not  have  been  fought? 

TIit>  charge  of  premature  recognition,  ou  examination,  reiluces  itself  to  this,  that 
the  proclamation  ought  not  to  have  been  issued  until  Mr.  Adams  arrived,  or  until  8oni(> 
event  called  for  it.  Against  this  is  to  be  set  tho  fact  that  the  proclamation  was  con- 
sidered by  some  friends  of  the  Northern  States  as  a  step  taken    in  their  interests,  and 


ins"  to  juMtif'y 

iitioii,  (May  I,) 
idly  war,"  mid 
iitioi)  to  M.  d(« 
il  bloclciido  as 

tllO    lif^lltH   of 

t  tli«  oiitbi(!iik 
I  tla;;riuit  civiJ 

OH,  ill  tlio  c!iH(; 
lit!  iH  itwlf  olli- 
d  and  aiithor- 
Julv,  IHil,  ap- 
1,  IH()2,"  paj,"* 
I  4tli  of  March 
aycd  it.s«df  in 

10  'i'id  of  July, 

Ix't'ii  (ixod  by 
)ii;;i'('ss,  liy  tlio 
livc.i'Hal  assent 
,  tlitoe  wa.s  no 
igciits  liad  ajt- 
rncss  of  (ircat 

I  can  ha  iiiimli 
tish  dominions 
rovidoiuH",  &.C., 
itisli  (!oininerct' 
as  indt't'd  was 
IS  time  for  tlu; 
thii  arrival  of 
iiy  tiling  111)  cx- 
ciircssi's  it,  (p. 
isL',  by  privatf 

'as  that  iM'tiou 

can  snpposo 
as  was  stated 

11  the  <j;overn- 
ate  privatcern^ 

mi  beinjj  so,  it 
•>;iiaf(o  of  the 
,  from  makiii<; 

till  fresh,  and 
msof  iieiitral- 
u  was  "  happy 
Iiractically  re- 
is  manifested 

ast  intluenced 
ivar  had  been 
pointed.  The 
ifederat<!S  had 
npied  Alexan- 

riiiK;  cnsa^e- 
issoiiri,  on  the 
of  Manassas 
bail  not  been 

f  to  this,  that 
or  until  some 
tioii  was  con- 
interests,  and 


OF.NERAL    APPKNIXX. 


330 


(hat  il  was  Imther  pressed  upon  the  jjovernment  by  Mr.  Dallas's  eoniinnnication  of 
Mr.  Seward's  eiicular.  .>f<irei)ver,  eonfi'derate  pris-ateers  were  at  sea.  and  Hritish  ves- 
Ntds  belli;;  niatle  prizes  by  tilt   Federal  liloeUadin^  lleet. 

Besides  the  assertion  of  the  premature  recognition  ofljellincreiit  ri;;hts,  the  dispatcdi 
states  that  maiit iiiie  enterprises  in  the  ports  of  (iri-at  Hritain  wliieh  would  otherwise 
havi"  been  piratical  were,  "by  viitne  of  the  proclamation,"  rendereil  lawful,  "anil  thus 
(ireat  Miitain  became,  and  to  tiie  end  eontinneil  to  be,  the  arsenal,  the  navy-yard,  and 
the  treasury  cd'  the  insiir;;i!nt  confederacy." 

Mr.  I'lsh,  in  a  pl•e(•(^dill^  passable,  admits  that  national  belli;;erency  is  "an  existing 
fact,"  and  he  ini;f|it  l.ave  added  that  it  exists  iii(le|ien(lently  of  any  ollh'ial  proclama- 
tiotis of  neutral  powers,  as  is  shown  by  the  records  of  tin;  Anieiiis'in  pii/.e-comts,  wlii('li 
continually  reco^ni/e  the  b(01i^ereiicy  of  the  South  American  States;  althouH;li,  as  .Mr. 
Sew,nr<l  stated  in  one  of  his  dispatches,  the  I'nited  States  liave  never  issiieil  a  proc- 
lamation of  neutrality  except  in  the  case  of  France  and  l'}u^land,  in  l7iK!.  This  was 
proved  in  the  civil  war  liy  the  reception  at  (Juiavoa  of  the  coiifediMiite  vessel  Sumter 
as  a  lielli^fereiit  cruiser,  though  t'l^  Netherlands  had  issued  no  proclamation  of  iieutial- 
ity.  It  was  this  ieco;rnitioii  of  the  Sumter,  after  her  depart  ore  from  New  Orleans, 
(■Inly  (!,  I'^til,)  at  (,'iira\;oa  .iiid  at  Cieiifiie^os,  which  liist  practically  accoiileil  mari- 
time liclli;;erent  rights  to  the  cimfederates,  a  fact  which  is  oveilookiMl  when  it  is 
alleged  that  <ciiifederate  "  liellii^crency,  so  far  as  it  was  iiiarit  ime,"  proceeded  '-from 
the  ports  of  (iicat  Ihitain  and  her  dependencies  alone." 

Indeed,  it  is  not  f^oin^  too  far  to  say  that  the  ciuifederalcs  derived  no  direct  iienelit 
from  the  iu-oclamati<ui.  Their  belligerency  depended  upon  the  fact  (a  fact  whi(^h,  when 
we  are  t(dil  that  the  civil  war  left  liehiud  it  tw<i  millions  and  a  half  id'  dead  and 
maimed,  is  nnfoi-tunately  indisputable)  that  tliey  were  wa^in;;  civil  war.  If  there  had 
been  no  pioclaiinition,  the  fact  would  have  remained  the  same,  and  belligerency  would 
have  had  to  lie  recognized  either  on  behalf  of  the  Northern  Slates  l»y  admiltin;;  the 
validity  of  captures  on  the  iii^h  seas  for  the  carriage  of  contraband  or  iireach  of  block- 
ade, or  on  the  arrival  of  the  Sumter,  or  somi;  similar  vessel,  in  a  Mritisli  [tort. 

In  no  ease  can  it  be  really  supposed  tli:it  liie  ieco;;uition  of  belliy-eicncy,  which, 
unless  neutral  nations  aliandoued  their  neutrality  and  toidv  an  active  part  in  the  eon- 
test,  was  iuevitablo,  materially  iiillueiicod  tho  fortunes  of  such  a  fearful  and  protractor 
civil  war. 

At  all  events,  if  it  did,  the  confederates  never  aekiiowledKed  it;  the  recognition  ol 
belli;;'ereiicy  they  regarded  (as  indeed  was  the  case)  as  a  liylit  wliii;h  could  not  lie  de- 
nied to  them.  What  they  sought  was  not  the  mere  technical  title  ot  "  bflli^ereiils," 
but  a  reco^fiiition  of  indepi'iideiice  ;  and  when  they  found  that  it  was  hopeless  to  expect 
England  to  accord  it,  they  cut  olf  all  intercourse  with  this  coiiiilry,  expelled  her  Maj- 
esty's consuls  from  their  towns,  and  did  everythin;;  in  their  powiu'  to  show  the  sense 
which  they  entertained  of  the  injury  which  they  believed  had  been  iiitlicted  upon  them. 
The  result  liein,i;  that,  while  one  side  has  blamed  us  for  doin^  too  much,  the  other  side 
has  blamed  us  for  doin^  to.i  little;  and  thus  an  assnin|ition  of  neutrality  has  been 
ro<j;arded  both  l>y  North  and  South  as  an  attitude  of  hostility. 

As  to  the  t/ieen's  proclamation,  rendering;  lawful  the  dispatch  of  the  Alabama, 
Shemindoah,  and  Georgia,  from  Hritish  ports,  to  which  il  is  to  be  presnined  the  ex- 
pression "  maritime  enti^rprise"  refers,  it  is  to  be  remarked  that  it  is  exactly  a;;ainst 
such  enterprises  that  the  proclamation  reeitin;;  the  terms  of  the  foreign  (Milistmeiit  act 
was  intended  to  warn  IJritish  .subjects.  Instead  of  rendering:  them  lawful,  it  rendered 
them  additionally  unlawful,  by  ^iviii;.!,'  notice  of  their  illegality. 

There  would  be  no  dilliciilty  in  showing  by  [irecedeiits  from  American  prize-courts 
that  no  proclamation  of  neutrality  is  reiinired  to  confer  belligerent  rights  on  vessels 
commissioned  liy  a  dc  facto  government. 

It  is  admitted  that  at  the  time  these  "enterprises"  were  undertaken  "  hostilities"  in 
America  were  being  prosecuted  "on  a  scahi  of  gigantic  magnitude.''  After,  therefore, 
till!  Alabama  escaped  on  the  'J'.tth  of  .July,  l8li'J,  she  became,  tiy  virtue  of  her  confeder- 
ate coinniission,  uudoubtedly  a  belligerent  cruiser,  irrespective  of  any  acknowledgment 
of  belligerency  by  Great  Britain,  and  was  received  accordingly  by  the  French  author- 
ities at  Martinique,  wln-re  she  lirst  touched  after  leaving  Liverpool. 

A  pirate  is  lioxtin  humaiii  (jviicr'x,  one  owing  obedience  to  no  authority.  If  the  Ala- 
bama had  lieeii  really  a  pirate  ileiiredating  on  American  commerce,  it  would  have  been 
the  duty  of  the  French  to  seize  her  and  execute  justice  on  her  commander  and  crew,  a 
pirate  being  trialile  whore.soover  found. 

.Judge  Nelson,  in  the  case  of  the  confederate  jirivateer  Savannah,  ruled  that  though 
confederate  privateers  were  pirates  iiikiikI  American  jurisdiction,  they  were  not  idratys 
jure  ticiiliiim ;  and,  in  the  case  of  the  Golden  Kockst,  in  which  the  owner  brought  an 
action  in  an  American  court  against  an  in.snrance  eonipany  for  the  capture  of  his  shiji 
by  the  Florida,  he  being  insured  against  jdracy,  but  not  against  war  risk,  it  was  de- 
cided that  ea[>turi!S  by  confederate  cruisers  were  not  "piracy"'  within  the  usual  iiieaii- 
ing  of  the  word,  and  that  the  company  was  not  liable. 

The  American  court.s  having  thus  corclusively  dealt  with  tho  mutter,  it  is  iiiiiiecea- 


340 


GENERAL    APPENDIX. 


ri. 


'  r. 


m  *  I 


Hiiry  to  jiiusiio  Mh^  Hiiltjt'ot  t'lirtli*!!-.  What  in  prolmMy  iiifaiit  in  tlitit,  if  the  ronfwltir- 
nU'.H  liati  not  i»i)s.sfH.s(«(l  a  ilc/inio  p>vi!riiiii(Mit,  aixl  had  not  hcon  l»clli>;i'rfiits  in  the  hchmc 
of  wa^iny;  pnlilic,  war,  vohmcIs  mikUt  tlicir  commission  wouhl  Iiavf  Immm  niiTi'  rovinu 
advontniciM,  )nirHninj^  nmn  liantincn  for  tho  saktfof  privalo  plnndcr;  in  short,  inratt's; 
hnt  l>y  thi)  admission  tlnit  "  liostiiitifs"  (tlin  very  word  to  wliich  execution  is  taken  in 
thi)  neutrality  proehvniation)  were  hein;;  proneeilted  on  a  jjreat  ncule,  th»)  only  Kioixnl 
on  which  snch  a  Hnpposition  could  rest  Ih  cut  away. 

II.— Till';  insi'ATcii  of  conkkdkii.vtk  (;iii.'i><ku,h  viiom  uiiiTtsit  iuhith. 

Any  one  who  reail  the  dispatc;!!,  without  any  previous  knowledjje  of  the  subject, 
inijjht  suppose,  from  the  lan^uaKc  used,  that  ticcts  of  privatet-rs  had  hecn  dispatcht.-d 
from  IJritish  ports  witli  tin;  connivance,  if  not  with  the  direct  supp()r%  of  her  Majesty's 
govcrninent. 

"(treat  IJritain     •     »     »    jA/'miZ/cv/ armed  cruisers  to  he  tittcd  out,"  &c. 

"  The  (Queen's  government  »  *  »  Hitffirvil  ship  after  ship  to  bo  constructed  iii  its 
ports  to  wa>;e  war  in  the  United  Statiss." 

"Many  ships     »     •     *     were,  with  ostentatious  publicity,  ]»einf;  construtded." 

"  I'rrmixHioii  or  neglij;enco  which  enabled  c(»nliMlerate  cruisers  from  her  ports  to  proy," 
&c. 

"Great  Kritain  ulone  had  founded  on  tli.at  recognition  ii  Hystfuuitic  inuritinic  war," 
»     »     »     "a  virtual  act  of  war." 

"  Sutferinji;  the  fitting  out  of  rebel  cruisers." 

The  fact  being  that  oiifji  one  vvhsvI,  of  whose  ))robable  belligerent  character  the  British 
government  luul  any  eviileuce,  escaped,  viz,  the  Alabaimi. 

The  Siieiuiiidoah  was  a  inercliaii  -ship,  employed  in  the  India  trade,  uudtn-  the  name 
of  Sea  King.  Her  conversion  into  a  coufederat*^  cruiser  was  not  heard  of  until  more 
than  a  mmith  after  she  had  left  England. 

The  Ot;orgia  or  .Japan  was  actually  reported  by  tlio  board  of  tradt!  surveyor,  wli(» 
had  no  idea  of  licr  destination,  to  be  imilt  as  a  merchant-ship,  anil  to  lie  rather  crank. 
Nothing  was  known  of  her  proceedings  until  she  had  taken  her  arms  and  crew  on 
board  in  Morlaix  15ay  and  reached  Cherbiuirg.  Her  real  point  of  departure,  as  ii  cruiser, 
waH  France  ami  not  England. 

The  Florida  was  detaimul  at  Nassau  on  suspicion,  but  discharged  by  tlm  local  admiralty 
court,  there  being  no  evidence  of  her  being  anything  but  a  blockade-runner.  She  was 
fitted  out  as  a  shijt  of  war  jit  Mobile. 

On  the  otlier  hand,  the  British  governuieut  prevented  the  outfit  of  the  Iiapi>ahan- 
nock,  prosecuttid  and  detained  the  Alexaiulria,  seized  the  Liverpool  rams,  and  stoppcul 
the  Pampero,  besides  investigating  carefully  every  case  of  suspected  outlit  brought 
forward  by  Mr.  Adams,  and  he  complainiul  of  iiinetccu,  as  well  as  every  case  which 
could  be  discovered  independently.  Among  other  things,  taking  charge  of  Captain 
Osborne's  Auglo-Chineso  llotillia,  which  it  was  ajiprehended  might  fall  into  the  hands 
of  the  confederates,  at  a  cost  to  this  country  of  JL'100,000. 

That  any  sea-going  steamer  can  be  converted  into  a  cruiser  by  strengthening  her 
bulk-heads  and  arming  her,  which  can  bo  doiu'  at  sea  as  well  as  on  shore,  is  proved  by 
th«  fact  that  the  most  efUcieut  blockading  vessels  in  the  Federal  Navy  were  converted 
blockado-ruiiners. 

The  Alithama, — Mr.  Fish  speaks  of  the  neglect  of  the  officers  of  the  British  govern- 
ment to  detain  confederate  cruisers,  and  esi)(!cially  the  Alabama. 

There  was  no  neglect  to  detain  the  Sheinnuloah  or  Georgia,  for  the  reason  that 
neither  the  government  nor  its  officers  knew  they  were  being  intended  for  the  confed- 
erate service.  Indeed,  it  has  novor  been  proved  that  the  persons  who  scdd  those  ves- 
sels knew  it.  ProbaVdy  they  did,  but  a  case  might  very  rejidily  arisu  in  which  the 
vendors  might  be  really  ignorant.  The  American  government  could  not  have  expected 
the  English  revenue  officers  to  prevent  every  large  steamer  leaving  England  in  ballast. 

With  regard  to  the  Alabama,  it  is  assumed  "  that  the  negligence  of  the  officers  of 
the  British  government  was  gross  and  inexcusable,  and  snch  as  to  indisputably  to 
devolve  on  that  {government  full  responsibility  for  all  the  depredations  committed  by 
hor.  Indeed,  this  conclusion  seems  in  effect  to  bo  conceded  in  Great  Britain.  At  all 
events,  the  United  States  conceive  that  the  proofs  of  responsible  negligence  in  this 
matter  are  so  clear  that  no  room  remains  for  debate  on  that  point ;  and  it  ahould  he 
taken  for  granted  in  all  future  nefjotiations  with  Great  Britain." 

By  a  peiitio  principii,  the  whole  argument  is  thus  assumed  to  be  in  favor  of  the  United 
States. 

There  is  no  doubt  that  the  Alabama  might,  if  she  had  not  escaped  at  the  moment 
when  the  case  against  her  appeared  to  be  legally  established,  have  been  seized  and 
tried  under  the  foreign  enlistment  act,  though  the  result,  looking  to  what  occurred  in 
the  case  of  the  Alexandra,  might  have  been  doubtful. 

This,  however,  is  a  very  different  thing  from  admitting  that  her  sale  to  the  confeder- 
ates was  a  violation  of  British  neutrality  for  which  the  nation  is  responsible.    This 


(•  «<in(\Mlt(r- 

II  till'  HI'IIMC 

I  ri>  roviiiu; 
II,  |>imtt'H; 
is  tJiUcii  ill 
rily  Krtxiiiil 


UTH. 

lit!  Hiibjcct, 
tlis|iatchi!(l 

>!■   MllJL'Hly'H 


ncti'il  ill  its 

::tc(l." 

•t,s  to  proy," 

itiiiio  war," 


•tlio  British 

iv  tht^  uamo 
[■  until  more 

rvcyor,  wlio 
itlu'V  craiiU. 
iiid  cri'W  oil 
as  11  cruiser, 

al  ailniiralty 
r.     Sho  was 

Iviippahan- 
iiid  stopptul 
lit  brouf^lit 
cast>  which 
of  Captain 
the  hantls 


thoniu};  her 
proved  by 
V.  converted 


tish  govorn- 

reason  that 

the  coufed- 
[\  those  ves- 
which  the 
ivc  expected 
jd  in  ballast. 
u',  olHcers  of 

isputably  to 
miniitted  by 

ain.  At  all 
Mice  in  this 

it  nhould  he 

)f  the  United 

the  nioraeut 

seized  and 

occurred  in 

he  confeder- 
isible.    This 


OKNKKAL    Al'PKN'DIX. 


341 


wan  the  first  iiiHtaiicc  which  oceiirrrd  of  tin-  sale  of  a  ship  under  such  circuiiiHtan.i's, 
and  the  Itritisli  ;;ovi-riiiiii-!it  liaii,  in  fact,  no  siis|)irion  of  what  was  f^oin^  to  be  done 
in  the  matter,  no  inforinalion  haviii;;  been  received  of  an  intention  to  tai<e  out  inu- 
ariiis  and  «Tew  in  a  separate  vesnei. 

.Fiid^je  Story,  in  tlie  well-known  ease  "  Sautissiina  Trinidinl  and  HantandiT,"  laid  it 
down  as  indispiilitltle  that  "  there  is  notliiii;;  in  our  laws,  or  in  the  law  of  n.itions,  that 
forbids  our  eiti/.eiiH  iVoie  seiidinv;  ariin'd  vessels,  as  well  as  niiiiiitioiis  of  war.  to  l\irei;xn 
ports  for  sale.  It  is  a  eoininereial  venture  wliicli  no  nation  is  Imund  to  pioliibit,  and 
which  inily  exposes  the  iiersons  enj^ayi-ij  in  it  to  the  penally  of  cDiiliscation." 

But  it  must  be  remeinlii-rt'd  that  when  Mr.  Kisli  claims  eoiiipensation  for  till  her  de- 
predations, he  should  not  ovfilook  the  fact  of  the  iieiiliy;eneesliown  Ity  the  Kedcral  Navy 
in  twice  letlin;f  her  escape  from  then.  l'"irst,  when  .Mr.  Adams  nr;;ed  the  captain  of  tiie 
Federal  ship,  which  at  his  instance  had  ;roi\e  to  Holyhead  to  lool'  afhr  her,  tn  pursue 
her,  when  liii'  captain  refused  and  went  nil'  li>  his  station  al  tiibraltai'  instciol  — a  pro- 
eeediii;j  at  which  Mr.  Adams  expressed  the  ;j:n'atesl  in(ii;iii.'i(  ion  ;  (see  ('iin;;ress  l'a|iers. 
IHIJ'J,  p.  l.'i'.l  M  and  secondly,  when  the  rnid  d  .Stales  ship  "  San  .Facinio  "  bhtekaded  her 
in  the  French  jnul  <d  St.  I'ierre,  Marlinip.e,  and  then  sutl'ereil  her  to  slip  away  al  ni;;hl 
fruin  iinder  her  bows. 

III. — Sirri.ii.s  1  rijMsin.i)  ro  tiik  (■r>Mi:i>i:itAri',s  nv  uimtism  siii.ir,trs. 

Mr.  Fish  states  that  theeonfedeiates  had  no  ships,  no  nieehanieal  appliances,  mt  open 
sea-p(U'ts,  A;e,,  and  implies  that  the  maritime  tbrce  of  the  c(mfedeiates  was  entirely 
derivtMl  from  Mn;;;land. 

TheSmiiler,  .Nashville,  and  Florida,  however,  all  sailed  from  confederate  pnit-s  in  which 
they  were  armed  and  fitted  out,  besides  a  vai'iety  of  small  coastin;;  privateeis,  such  as  the 
Tallahassee,  whose  eaptnres  form  a  eonsideral)l(<  item  in  tiic  list  of  I'^edeial  maritime 
lo.sses  lately  inesented  to  Conj;rcss. 

''On  the  land  it  was  in  like  manner  the  munitions  of  war  and  the  wealth  drawn  by 
the  insur;;euts  from  (inat  Britain  which  enabled  them  to  withstand,  year  after  year, 
the  arms  of  the  I'niled  .States." 

If,  as  Mr.  Fish  states,  the  confederates  Iiad  no  open  s<'a-porls,  how  did  these  muni- 
tions and  ai'iiis  reach  them  7 

Either  the  blockadi-  was  iiiellicicnt,  in  which  case  it  was  ille;;al,  and  neutral  nations 
were  not  bound  to  respect  it,  or  it  w.is  elllcient,  ;is  it  was  ieciii;iiized  by  (Jrcal  lirilain 
to  be,  and  the  siipidy  of  arms,  Ac,  was  lia/artlons  and  uncertain. 

There  is  nodoctriiie  nioie  clearly  settled  than  that  neutral  nations  !U'e  not  responsible 
for  the  supplies  of  contraband  sent  tliroii;;'!)  a  lilockade  by  their  siilijects.  Jiideed,  the 
very  existence  of  a  blockade  implies  this,  for,  if  it  were  the  duty  of  lu'iitiiils  lo  pre- 
vent the  shipment  <>{'  supplies  to  l)clli;;-ei-elit,s,  why  should  there  be.  a  blockade  al  all  ! 
Each  side  would  (daiui  compensation  for  the  assistance  rendered  to  the  other,  ami  neu- 
trality would  become  iini)ossible. 

If  once  it  be  conceded  that  bldekaile-runninjj;  is  an  olfeiise  a;;ainst  neutrality  in  a 
civil  war,  the  precedent  Wi)uld  not  fail  to  be  invoked  in  all  wars  by  i|rhiche\'er  bellij^er- 
ent  considered  himself  most  a;if;iieved.  Instead  o]'  establishing^  a  priniii)le  in  the 
interests  of  future  peace,  this  would  lead  to  endless  comiKJicaliinis  and  claims  and 
counter-claims,  which  would  make  the  end  of  one  war  the  sure  be;iinninj;  of  aiiolher. 

The  (|uestion  of  the  action  ol'  the  Dutch  in  the  war  of  indi-peudeiuM;  cannot  be  dealt 
with  without  a  review  of  the  history  of  llie  period,  for  which  this  inenjiu'auduui  does 
not  ailbrd  space.  An  account  of  the  procee(lin;;s  al  Saint  Enslache,  and  siibs.(|ni'nt 
discussions  with  the  Dutch  ^iovernme  it,  will  be  found  in  De  Marten's  "  N'ouvelles 
Causes  ("elebres  dn  Dmit  des  (Jens." 

As  to  the  sn]»plies  sent  tlironj;h  the  blo(;kade  liavin;^  been  oijrauized  by  cinifederatc 
agents  in  Eneland,  the  example  was  set  them  Ijy  the  bureau  estalilisln.'d  liy  Franklin  at 
Paris  for  the;  assistance  of  the  American  provinces. 

Oil  the  other  hand,  it  is  notorious  that  the  Federal  troops  were  jdentifiilly  provided 
with  arms  and  mnnitious  from  this  country. 

Her  Majesty's  government  have  yet  to  learn  that  it  lias  been  held  in  international 
discussions  that  iiulividiials  are  precluded  from  supplying  belligerents  with  munitions 
of  war. 

IV. — iNDIItKCT  IX.nitY  TO  AMiatlC.VN  COMMKItCK. 

"Indirectly  the  effect  was  to  increase  the  rate  of  insurance  in  the  I'nited  f^tates,  to 
diminish  exports  and  imports,  ami  otherwise  obstruct  <lomestic  industry  and  piodne- 
tioii,  and  to  taki' away  from  tlie  United  States  its  immense  foreign  commerce  and  t<i 
transfer  this  to  the  inerehant-ve.s.sels  of  (Jieat  Britain." 

Mr.  Fish  proceeds  to  (jiioto  ligures,  showing  the  decrease  iu  American  tonnage  be- 
tween IHIJO  aud  1W)G, 


342 


GICNKKAL   APPEMJIX. 


I'r 


4' 

i     I 

r1 


Tliis  allc^fitinii  (if  Tiatitiiijil,  iinliii'ft  or  const rmtivf,  claiiiis  xvas  fii.sf  Iir<iii;i;lit  f(»r- 
^vjtr«l  otliriiillv  l>.v  Mr.  IJcvfi'dy  .Joliiisoii  in  his  atti'iiqit  to  r -lu  vv  iic<;i)tiatioiis  on  the 
tlahii.t  f<>iiv«'iilioii  in  March  last,     (\orth  AnnMicu,  \o.  1,  !•<(>'>,  paj^t-  •«<>.) 

Mr.  1'hniiiton  has  siiown  the  diniciilly  thi-i'<-  would  Im-  in  (onipiitinjr  tiic  amount  of 
I'laini  ivrn  if  it  wcrf  acknowh'djfcd,  (N'oith  AnnTica,  No.  ),  !•"'»)■.>,  iia;;t;  .'>;?,)  in  a  dispati'li 
in  which  lie  nn-ntioiiH  tlic continnal  dct  rcasc  of  American  tonnau;c. 

This  is  partly,  no  (h»iil)t,  to  Ih^  ascrilicd  to  tlic  distnrli;>n(:<- oi'  cominci'cial  relations 
C(insc(|ncnt  on  a  lonj^  waf,  partly  to  the  fact  that  many  vessels  were  non>inally  lians- 
ftMied  io  jiritish  owners  <liirin;;  the  war  tn  escape  cajttnre.  Sir  E.  Ilornliy,  in  a  iccent 
r'  port,  stales  that  this  was  a  constant  pne-tice  in  Cliina. 

Is  not,  however,  ii  ;.;ood  deal  of  it  to  he  attrihnred  to  the  l!iy;h  Ai/ierican  tarilV.  which 
makes  the  construction  of  vess^ds  in  American  ports  more  e\|ieiisive  than  shi]i-!intldin)r 
in  Kn<;land,  and  has  thereby  thrown  so  larj^t;  a  proportion  of  tlio  carryiuf^  trade  into 
Kiij^UhIi  hands  i 

There  ninsL  he  some  snch  tvause  f«>r  it,  or  ofhcrwi.so  American  shippiii;;  -.vouhl  huvo 
rcco\ered  its  jiosition  since  the  war,  inst"ad  of  eontinnin;^  ti>  fall  ofi'. 

"Neithei' in  the  events  which  preceded  that  war,"  (of  l^l'.'.)  nor  in  the  events  of 
the  war  itself,  did  thi"  Tnited  States  suffer  more,"  Ac. 

No  one  can  ii..w  wish  to  recall  to  recollcctitm  the  particular  i^voiisof  thai  wai';  it 
wonlil  he  much  better  for  the  two  nations  to  con^riitulate  themselviH  that  one  of  tin^ 
(iiincipal  causes  of  it,  the  ni  tionalily  dispute,  has,  it  is  to  he  hoi>ed,  tieen  set  at  n-st 
iiually  by  Lord  Stanley's  ]>roi,ieol. 

v.  I'he  disp  -h,  in  conclusion,  refers  "to  important  ehanjjies  in  the  rules  of  juiblit- 
law,''  the  4h  ^li.inlcnessof  wiiich  has  Iteen  dvnionstraird,  luit  docs  not  say  what  art;  thi* 
chanjics  to  whicli  it  alludes. 

This  IS  in  the  sjiirit  of  the  )iroposal  made  by  Ib'r  .Majesty's  jjovernnient  in  Deeeniher, 
iHlio,  (Nortli  Ann-rica.  No.  1,  l^'tifi,  paj^e  1(>1:)' 

"  I,  h'.wevi'r,  asked  Mr.  Adams  whether  if  wonhl  not  be  both  useful  itiid  pnictical  to 
let  byyones  be  byyiines,  to  foiiret  the  past,  and  t  urn  the  lessons  of  experience  to  account 
for  tile  future.  J'.nj;land  ami  the  I'nited  States,  I  sa'd,  had  each  liecume  uwaie  of  tho 
defects  thai  <'xisted  in  internat iona!  law,  and  1  tlinu;j;ht  it  woi.Id  >ireatly  re<li)und  to 
the  li*Miiir  of  the  two  )ivineipal  maritime  nations  of  the  world  to  ;if temi>t  the  impiove- 
nients  in  that  coile  which  had  iteen  pi.'ved  to  be  necessary.  It  »as  possililc,!  added, 
that  the  wounds  iidliclcd  by  the  war  were  still  too  I'eeent,  and  that  tin  ill-will  to- 
ward ICn^jlaml  was  still  too  rite,  t<t  renilrv  hmcIi  an  undertaking;' practieaiile  at  the  pres- 
ent niiniieiit  ;  but  it  Wiis  one  which  oii<j;ht  to  be  boriu  in  mi'.id,  and  that  was  earnestly 
desired  by  Her  Majesty's  eovcriimenl ,  as  a  means  of  promoting;  ]ieace  ami  abafiny;  the 
honors  of  war;  and  a  work,  tlier, /ore,  which  would  be  worthy  of  tlic  eivili/.-vtion  of 
our  aee,  and  which  would  entitle  the  pivernnu'iits  which  achieved  it  t()  the  ;irat'tud.e 
oi'  mankind." 

It  is  not  necessary  in  this  memorjimlnm  to  dwell  on  the  allej^edetliciiin-yof  the  Ain«r- 
ican  as  conipai'ed  Io  the  Kii;vli>'h  for»'i;^n  enlistment  act.  Tlie  failure  of  the  American 
act  in  t  he  rortniiucse  c'im's,  in  i  he  icpeatcd  tiiilnisteiiiM^  e\|H'ditioiis  of  Walker  ;»y;.iinst 
Cenlral  America,  ,'ind  the  acipiittiil  under  il  of  Lope/,  the  invader  of  Cuba,  are  p<oofs 
that  it-'ai'tioti  eaniiot  always  be  relied  upon  ;  and  this  is  t'urther  eoriobmaled  by  the 
ilillicnlties  now  biin:;  expi-rieuced  in  dealing;  with  tin-  Hornet  at  \Vilmint;ton.  Al- 
thon;;b.  as  .Mi'.  I'isli  ?.m\s,  there  have  been  p>roseciiti.>ns  n  ler  it,  it  is  l»elievei|  that 
fi'<Mn  the  trial  ot  (iideon  Hcnlicld  in  17'.t:>  to  the  present  d-.  there  has  never  bei'ii  a 
crimiiial  con\  ietioii.  The  only  result  of  the  proceedinjjs  hi  nm  has  bi'cn  to  restore'; 
prizes,  never  to  punish  privateerinji' ;  and  the  e!fe  t  of  the  bonds  n  Inch  the  act  pro- 
vides may  be  taken  thai  the  oirinrn  of  a  vcssid  shall  in:t  //(c/»^^( /c/i,  employ  her  in  a  btd- 
lijLjelent  ^erviee,  ;inil  which  has,  it  is  believed,  nevel'  been  piai't iiallv  enforced,  is,  lis 
.Mr.  I'.eiiiis,  of  Mostoii,  points  out  in  his  vi>luiue  on  .Vmeiiean  iieiitr.ilily,  to  a<ld  so  niiicli 
to  the  price  ot"the  \essel. 

With  ie;;ard  to  the  ciaiius  for  "  vast  national  injuries."  it  may  be  as  well  to  oliseivo 
that  I'lotessor  U'oolvcy.  the  em  in  en  1  .\m.  riciii  jiu  ist,  has  repudiated  them  as  enteiKkble, 
while  the  strongest  arji'uinenls  in  lir.  or  of  tlii'  reco^rnilion  ui'  conb'derate  bidlij^ereiicy 
are  to  be  tbuiid  ill  the  notes  to  Mr.  |)ana's  ci;;  'h  etlilion  -.it' Wheatoii ;  and  -N'.r.  Law- 
rence, (  the  editor  of  the  second  aniiotatv'd  edlllon  ol  V>  ilea  I  on,)  in  a  recent  ••pceell  lit 
Ih'istol,  stated  tliat  "  as  far  as  lespcetf  the  eoii'(iianit  tounded  on  the  reco^rnition  of  the 
bclli{j;erent  li^-hts  of  tile  (•onfedei'iites,  I  cannot  use  too  stronjj;  lan;,;uaije  in  pronounein;; 
its  niter  baseless  eliaiiicler.  No  tyro  in  iiilernational  law  is  i;;niu'aiit  that  iM-Ui^erency 
is  a  simple  ipicstitui  of  fa«'t.  NV'ilh  the  late  Sir  (oinewaii  Lewis,  we  may  ask,  if  tin* 
array  of  a  million  ol  nii'ii  on  eaclnadt  docs  net.  ciuisti'uie  belli;.;erenc\,  what  is  bellip'r- 
uncy  f  Ibilt  what  was  the  proclamiition  of  the  1  resident,  followed  up  by  the  condein- 
nation  of  your  ships  ami  I'ar^oes  lor  a  \  ioijition  of  the  blockade  svliich  is  e».tai)lished. 
hut  the  reco>;iiiti(ui  ot  a  state  of  war  f  At  this  moment  the  I'nited  stateM,  ir,  .  1,11  mi n^ 
llu'  pioperty  of  flic  late  eonfederate  pivernnuMif ,  place  lielore  your  tribunals  their  title 
on  the  tact  ol  their  lie  in;;  1  he  suiccssois  (da  </«  Jiulo  ^o\  eminent.  I  repeal  dial,  how- 
evir  \alld  our  eluiiiis  may  be  against  you  on  other  grounds,  tUvi'e  is  uut  thu  HliKlituHt 


proiifj;Iit  f<«-- 
itiiis  till  tlic 

■  iinioiint  (if 
I  :i  ili.-4|>iitch 

:il  rcliitiiiiis 

iially  liiiiiH- 

ill  :i  recent 

luitV.  which 
ii|i-liinl(iiti<;>; 
:;  liinle  into 

•Aoiild  hvvve 

i<"   evelifs  of 

iial  war;  it. 
t  one  of  the 

I  set  iit  rest 

's  ot'  )iMhlio 
shut  art!  the 

II  Deeeinlier, 

]>nj((iejil  to 
e  to  aeeonilt 
Avaie  of  th(.> 
'  lediiiiliil  to 
hi'  ilri|»love- 
Me,  I  aihh-it. 
ill-will  to- 
ut tilt!  jires 
as  earnestly 
uliatiiiy;  the 
viii/uliiin  of 
le  ;:;rat'tuile 

>f  the  Ainer 
le  American 
Iker  a^j.iinst 
«,  are  |>'oofs 

aled  1),V   the 

in^ston.  AI- 
lieve.l    that 

lever  heen  U 

11  to  restori" 
tile  act  |>ro- 
ler  in  u  hel- 
I'lirced,  is,  us 

kM  :^o  nilieh 

ll  to  olisei  ve 
S  IMltelluMe, 

>elli^;i!etit'\' 
id  Mv.  Law- 
It  •■.|ieec!l  at 
lit  ioii  of  the 
iroiiimiiein;^ 
iMllij^ereUi'V 
isk,  if  thii 
t  is  heUiner- 
the  I ondcni- 
•.tnidisli4Ml, 
I,  .  ■..wiling 
Is  tlieir  title 
1  thai,  how 
ill."  shuhlottt 


GENERAL   APPENDIX. 


Ul] 


pretext  for  an-,  clr.im  iiji.iiiist  you  hased  on  the  jmhllc^  admission  of  ;>  notorious  fact,  the 
existence  of  vhich  has  heoii  reeo^fiiiziMl  hy  every  deiiartnient  nf  the  Federal  (ioverii- 
ineiit." 

Tlie  course  i.iirsued  by  Groat  Britain  in  thctunitost  lu'twcon  Hungary 
iiiul  Austria  iii  1818- '4!)  may  he  cited  as  beiujj  in  striking  contrast  witli 
the  course  j^tirsucd  toward  tlit^  United  States  ie  1801. 

Alter  the  suppression  of  the  insurrecticui  at  v  ieiina  (October  '2\K  18^8) 
the  Austrian  {generals  deterininef'  to  inarcli  aj;jainst  Ilunijary.  At  tliis 
time  th.*  coniliineci  Austrian  armii^s  consisted  of  tibout  i;5.">,0()()  men. 
The  Ilunf^arians,  on  tiie  other  liand,  with  about  12r),(H)(>  men,  o(;cupietl 
their  entire  territory,  includi'ij;  tiieir  cajiital  and  all  their  fortresses. 
The  fortress  .»f  Ivomorn,  i)erhaps  the  strongest  in  Europe,  appeavs  to 
have  heen  held  by  the  Hungarians  until  the  eml  of  the  revolution.  On 
the  l.'Jth  of  December,  1848,  the  Austrians  seemed  to  have  gained  no 
vi(!tories.  Tln^  capture  of  Raab,  th<;  first  of  a  number  of  successes  which 
they  obtained  prior  to  their  complete  (b'feat  in  March,  18M>,  did  not 
occur  initil  December  U(5,  1848;  meanwhile  the  Hungari;'  is  liad  lieen 
organizing  tor  nearly  a  year  for  the  [)urpose  of  making  war  against 
Austria. 

[See  AiMiual  Kegister,  vol.  00,  p.  401 ;  and  vol.  01,  jt.  .ilM.] 

On  the  lltii  c>'  December,  1818,  an  envoy  of  the  Hungarian  executive 
government  adores:-v(i  a  note  to  Viscotmt  I'almerston,  offering  to  fur- 
nish him  with  preinse  intbrmatiou  of  the  acttial  state  ol"  the  kingdom  of 
Hungary,  ami  asking  au  interview*  \'ov  that  purpose. 

On  the  l^itli  of  l)eceui)ier,  1848,  the  following  r<  ply  was  unide  to  this 
retpicst : 

Lord  lidishur;/  to     "     *     '     '     . 

l'ii;i:ni\  Oi  i-ici:,  lUcrmbcr  II?,  l-'J-'. 
•SiK:  I  am  directed  hy  \'isc(iiuit  I'alinerston  lis  acUiiov  "  .l;re  the  receiid  of  your  letlei' 
>,f  the  11th  instant,  .iiid  in  reply  I  am  to  say  that  Visniiint  Paimi-rstoii  is  sorry  he  can- 
not leceivc  yon.  The  Mritish  iitiveriiiiieiit  has  no  knowlediie  of  llnnjfary  except  .is  mie 
of  the  ((iii!|ioneM,  )iarlsof  lie  .\iistriaii  lOmpire;  and  any  I'nniiiinniial ion  which  \i<u 
have  to  make  to  ller  Majesty's  ;ioveriiineiit  in  regard  to  tiie  comnienial  inleic  nirse 
hetwci'ii  (ireat  lirilai.i  and  llmi;;ary  slimtid,  I iii'iidiM e,  he  made  thioii;;h  I!. iron  Kollcr, 
?)ic  rejtre-cnl.ii  i\  e  of  the  I'2mperor  of  Austria  at  this  court. 
1  uui,  «.Vc.. 

EIUSIMJUV. 
(Itrilixkand  Foreign  Statt-  I'ttptiH,  rol.  \\7,p(tijr  7'.>'X) 


•i.— MEM(iliANJ)r,M  LONCEUNJ.Nti  TIJE  UVAiEL  CKLISKIW. 

1.  A  hi  ha  ma. 

2.  Vltichaind.tuia. 
,'{.  C  lay  face. 

4.  Coinad.     (See  l.\i.scaloosit.) 

5.  Florul(t. 
<}.  (h'ort/ui 

7.  yashrt'lle. 

8.  Stir  York, 
it.  iirfrihiilion 


(See  Cbicksiuuiuga.) 


H).  Shcnamhmh, 

1 !.  Sumter. 

12.   Tavouij.    (See  Clarence.) 

1.).   Ti!ilah((SN(c. 

14.    Tuxrahumi. 

UnlesH  otherwise  noted,  the  refer«'nces  to  volume  ami  page  that  fol- 
low are  to  be  fcumd  in  the  puhlisluMl  (/ompilation  (.'laims  of  the  United 
Stiitus  against  (ireat  Hrituin, 


344 


GENERAL   APPENDIX. 


^■■■' 


I'U 

fl 

t 

'.«: 

! 

Ml 


IwjJ,  April    4, 


.-■> 


THE  ALABAMA. 

Mr.  Dudley  iulorms  his  j»ov(iinmeiit  that  Ji  powerful  ^uuboat 
is  buiUliuji  in  ^Messrs.  Laird  &  Co.\s  yard,  at  IJirkeuliead,  prob- 
ably for  tJM'  rebels.  {Mr.  Dudhy  to  .1/r.  Scirard,  April  4, 
18GL* — not  prinied.) 

He  ^ives  notiee  that  she  has  been  launched — muloubtedly 
tor  tile  rebels.  ( damn  of  the  i'aittd  /Stdtea  mjoinst  Great  liritain, 
vol.  Ill,  )K((je  1.) 

!Mr.  Adams  requests  Earl  Russell  to  prevent  l«er  from  sailing. 
{t'hiiitts,  it  v.,  rol.  J II,  iHU/c  o.) 

Mr.  Wilding",  viceeonsul  at  Liver[)(»ol,  sends  a  «lescripti()n  of 
the  yun-lioat  to  his  <(overn:nent,  stating  that  she  is  called  the 
"Xo.  21)(>."     [Claiiihs,  it-f.,  col.  Ill,  pane  li.) 

Earl  Russell  refers  the  ease  to  tlie  commissioners  of  customs. 
[Claims,  dr.,  vol.  Ill,  page  (J.) 

They  report  th«^  description  of  the  vessel,  and  state  that  her 
builders  <lo  not  deny  her  to  be  a  man-of-war,  but  say  she  can 
not  be  seized  without  lej;al  evidence  of  the  purpose  for  which 
she  is  built.     {Claims,  dr.,  vol.  Ill,  pane  7.) 

In  accordance  with  l^arl  Russell's  suu;;'estion,  3[r.  Dudley 
furnishes  Mr.  Edwards,  colle<;tor  at  Liverpool.,  with  the  evidence 
that  the"Xo.  2!>0"' is  intended  for  the  rebels,  {Claimn,  dx:, 
vol.  Ill, pa<i<>i  17,  18.) 

The  commissioners  of  customs  <lecide  the  evidence  insullii- 
cient  to  iustifv  the  detention  of  the  vessel.  [Claims,  dr.,  vol. 
III,pa<iis  1!)-L'S.) 

Mr.  R.  V.  Collier,  (^)ueen*s  counsel,  gives  it  as  his  oi>inion 
that  Messrs.  Laird  cV  Co.  are  littinjiout  the  "200"  as  a  rebel 
privateer,  and  that  her  detention  wouhl  be  justitiable.  (Claims, 
d'C,  vol.  Ill,  pa  yes  l(i-28.} 

Counsel  for  tiie  Cnited  !->tates  applies  to  have  the  decision  of 
the  commissioners  of  customs  reconsidered  before  the  \essel 
escapes.     (  Vol.  Ill,  paffvs  Jl(-;il.) 

The  "L'JMr"  sails  without  a  <-learance,  uiuh'r  pret«'nseof  a  trial 
trip,  with  a  part  of  her  crew  and  provisions  for  six  months. 
Some  ladies  ami  other  jvassenjiers  go  in  her  as  far  as  1J»'11 
IJuoy.  as  a  ruse.     (  Vol.  Ill,  paf/is  .'Jl-;>7,  Claims,  dr.) 

In  accoj-daiice  with  the  report  of  the  law ollicers  or<lers  are 
sent  by  tele^iaph  to  (^)uei'nstown  and  Nassau  to  seize  her.  She, 
however,  avoids  those  ports.  [Claims,  dr.,  I'ol.  Ill,  payts  11, 
Md-MLJ.) 

The  "2iH>"  anclnns  near  Port  Lynas,  where  the  tu;j;  Her- 
cules takes  nu)rt'  men  to  her.  Mr.  I)udley  states  that  she  also 
receives  cutlasses  and  powdei',  and  has  six  guns  concealed  in 
lier  hold.     [Claims,  dr.,  pat/is  .U,  !.">,  Ui,  od,  VV.),  14(»,  Lt7.) 

She  arrives  at  Terceira,  .\/,ores. 

The  bark  "Agrippina"  arrives  from  fiOndon  with  guns, 
}immunition,clotlnng,  and  coal,  which  are  all  transferred  to  the 
'•LMH)"  at  Terc»Mrsi. 

The  steamer  "liahama"  also  arrives  from  Liverpotd,  ami 
proceeds  with  the"U!M»"and  the  "Agrippina,'' all  three  ves- 
sels tlying  Hrilish  colors,  to  .\ngta.  Here  h»'r  cargo,  <'onsisting  ol"  mom-y 
and  guns,  is  put  on  Ijoard  of  the  "-!>()."  Semmes  and  (►ther  ollicers  ami 
men  are  also  bvought  out  in  her.  [Claims,  dr.,  payis  V},  Hi,  TtO;  also, 
hW-m.) 


.luT.f  SI. 


Jiilv 


.l',nP25. 


•Inly 


.Inly  9. 


•111!:    I.'i, 


,»niy  18. 


July  a:u 


.lu!y  «). 


A  ir.    \'J. 


iMtW.     \.| 


GENERAL    APPENDIX. 


345 


ijLjiinboat 
iul,  pioh- 
April   4, 

oul)tt'(lly 
tliritain, 

iisailiiifj;'. 

iptioii  of 
ilk'd  tlu> 

custouis. 

that  her 

she  can- 

or  which 

,  Diulh'y 
I'vidt'iice 
lims,  tl'c, 

e  iutiiillli- 
,  tOc,  rol. 

s  opiiiioit 

s  a  rebel 

{Cl<(iiii.s, 

visum  of 
le  vessel 

)f  a  trial 
months, 
as   IJell 

(lers  are 
r.     Slie, 

IHKjCS   17, 

Hii  Iler- 
she  also 

ealed  iti 
17.) 

ii  ;;iiiis, 
'<1  to  the 

ool,  and 
iree  ves- 
)!'  money 
cers  and 
"•(I;  rt/w, 


i-«ia,  oit.  4. 


(■««,  Oct.  «. 


Mr.  Adams  addresses  a  note  to  Earl  Russell,  calling:  atten-  ,^...  ^^ ,  ^ 
tion  to  the  further  i)rosecution  of  illegal  and  hostile  measures 
against  th(^  United  States  in  eonnection  with  the  rebel  (Muiser  now  called 
the  "Alabama,"  and  transmits  evidence.     {Claims-,  d-c,  rol.  If  I,  pages 
44-47.) 

His  lordship  replies  that  the  report  of  the  law  oflicers  of  the  ^^.,  ^  ^  ^, 
Crown  was  not  received  in  time  to  detain  the  vessel,  but  that 
on  .Inly  L»!>  (the  day  when  she  sailed)  orders  were  sent  to  (^ueenstown 
and  Nassau  to  stop  her.     She,  however,  avoided  those  ports.     (Claimn, 
d't'..  jKtfic  47;  <ils-o,pa(fcii  1. '54-1 42.) 

Mv.  Adams  informs  Earl  lijissel  of  the  de])redations  commit 
ted  by  tlu' "Alabama'' at  the  .Azores,  and  that  other  similar 
enter]>rist's  an^  on  foot;  [vol.  IIF,  pages  41),  T)!);)  transmits  deposition  of 
(.;eor<4'e  Kiny,  and  urges  the  enforcenuMit  of  the  laws  of  neutrality. 

Earl  K'nssell  replies  that  much  as  he  rej^rets  such  occur- 
rences, "  Her  ]\rajest;^'s  {»overnment  cannot  go  beyond  the  laws 
numicipal  an«l  international."    {Vol.  ITT,  page  ~>\.) 

Mr.  Adams  transmits  an  intercepted  letter  substantiating  the 
rdh'gations  made  olthe  infringements  of  the  enlistment  law  by 
the  insuigents,  which  receives  the  sanu^  answer  as  his  preceediiig  note. 
{  Vol.  TIT,  pages  a],  .~>(l.) 

Earl  Russell  (communicates  report  of  the  law  oflicers  that  the 
Alabama  did  not  receive  her  armament  within  the  IJritish  <lo- 
niinions,  and   that  no  steps  can  be  taken  to  prevent  a  repetition  owing 
to  tlie  dilliculty  of  as(!ertaining  the  intention  of  the  parties  nndving  the 
shij)nu'nts.     (  Vol.  HI,  page  Tt'.S.) 

i\lr.  Seward  sends  copies  oi  papers  to  Mr.  Adams  relating  to 
the  dejiredations  of  the  Alabama,  and  instructs  him  to  send 
copies  to  Karl  Hussell.     {Vol.  ITT,  pages  TA-^u.) 

Mr.  Scwar<l  sends  to  Mr.  Adams  tlu'  rescdutions  of  the  New 
York  Ciiamber  of  (%>mnu'rc«».     (  Vol.  HI,  pages  Ol-d.'}.) 

Informs  him  ol  further  devastation  by  the  Alabanui  on  the 
high  si'as.     {Vol.  HI,  jiage  HI.) 

Mr.  Adams  submits  to  ICail  Itussell  copies  of  papers  received 
Iroin  Wasliinglon,  and  IVom  the  (consul  at  Liverpotd,  relative 
to  the  depredations  of  the  AIal)ania,  and  asks  redress.     (  Vol.  I  IT,  pages 

7(»-7;{.) 

Earl   I'lissell  informs  Mi'.  Adams  that  iier  Majestv's  govein- 

'  \**i\'*         I>MC         I*) 

nient  cannot  admit  their  lial)ilify  for  the  proceedings  of  the  reltcl 
ciiiiscr.  but   thinks  tiiat  amendments  might  advantageously  be  made 
t<»  bolii  tlu'  Hritisii  and  Anu'rican  laws.     (  Vol.  Ill,  pages  SS-IL*.) 

l-'url  her  correspondence  on  this  subject  ]U'odiu'es  no  eflcct,  (co/.  ///, 
jKtgcs    !•;{-!(((),    114-llS,    1(14,    Kll.)     Earl    llussell    expresses  the    hopes 
that  n»»  liirtiier  claims  will  be  niade.     {I'((ge  1(14.) 
Sinking  of  the  Ilatteras.  ixfti  ,i;,„.  u 

Ilcr  crew  taken  to  INul   Ivoyal,  Jamaica,  where  the  Alabama 
is  rcjiiiircd  and  icceives  provisions  and  coal.    The  British  ad- 
miral makes  Semmes  a  visit  on  board  of  his  vessel,  which  is  treated  like 
a  regular  ship  (dwar.     {Claims,  dr.,  rol.  1 1 1,  page  \~A)-,  lirit.  lilue  Hook, 
X.  Ameriea,  jVo.  1,  bSJiO,  page  141.) 


is  I 


l>"t'.   Oil.    '.•(1. 


IHlii 


.) 


The  Alabanui  enters  Saldatdui  Hay,  Cai>e  (!ol(niy,  where  she 
discharges  her  prisoners,  is  painted,  vS:c.     {Page  10(i.) 

She  captures  the  Sea  Bride  o(f  ('ape  Town.  The  United 
States  (Mtnsul  juotests  against  this  outrage,  but  receives  no  sat- 

N.  H. — Fur  a  lint  of  vessels  wliicli  took  our  ivriiw,  siippliuM,  &,c.,  for  the  robulH,  from 
Gruut  lirituiii,  nee  Claims,  iji-c.,  vol.  I,  page  T.W. 


I*i:i,  July  ss. 


ixit.'t,  A  III.  i. 


346 


GENERAL   APPENDIX. 


1863,  O.t.  11. 


I'- 


isfaction  fi'om  the  governor  of  the  colony.     {Claims,  tOc,  vol  HI,  puqcs 
107-172.) 

Mr.  Adams  is  instructed  to  inform  Earl  Russell  that  he  nuist 
continue  to  give  him  notice  of  claims.    {Chiinm,  ttc,  vol.  Til, 
pages  170-178. 
18US  Oct  M      ^^^  ^*'  informs  Earl  Kussell,  aiul  transmits  further  evidiMiee. 
"{Claims,  ct'c,  vol.  Ill,  pages  180-201.)    Tiu*  Alabama  continues 
her  depredations  on  American  commerce,  for  w  )iich   no  reparation  is 
made  by  the  British  {.,ovcrnMUMit,  notwithstanding  the  continued  pro- 
tests of  .Mr.  Adams,     (  Vol.  Ill,  pages  201-257.) 
1863  D«  ai      ^^^'^  «'oals  at  Singapore,  where  her  commiinder  is  entertained 
by  the  otlicers  of  the  garrison.    {^Qly  Adventures,''^  ttc,  Scmmes, 
pages  711,  7ir).) 

JSiui  is  allowed  to  land  her  prisoners  at  Malacca.   ("  Mu  Adven- 
/M>r,sy'  tCx'.,  page  <11).) 

The  Alaltama  returns  to  Cape  Town  and  takes  in  coal  and 
provisions.    ("  .1/^  Ail  ventures,''-  <fc,  page  744.) 

She  is  sunk  by  the  Kearsarge.  {Claims,  li'c,  vol.  Ill,  page 
257.)  After  this  an  extended  correspondence  takes  jjlaee,  the 
United  States  Clovernment  denumtling  the  surrender  of  the  pri.soners 
carried  to  England  by  the  yacht  Deerhound.  Tiiis  denumd  is  refused, 
{Claims,  d'C.,  vol.  Ill,  pages  258-ui;3.) 


18At,  Mnr.  20 


i->i;t.  .iMtii'iit. , 


CIIIOKAMAUCiA. 


n 


i 


iis 


im 


British-built  vessel,  (manuscript  t^.'spate!.,  Dndley,  250,)  to 
run  block'ule;  arrived  at  Bermuda  early  in  April,  (manuscript 
dispatch,  AUen,  100,)  Engage«l  in  running  blockade,  with  cotton,  be- 
tween Bernuula  and  Wilmington.     Then  known  as  Edith. 

Left  VV'ilmington  in  rebel  service  to  cruise  against  commerce 
of  the  United  States ;  made  ca[)tures.  Name  changed  to 
Chiekamauga. 

Came  into  Bernuula;  was  allowed  one  week  to  make  repairs, 
and  25  tons  of  coal. 

Left  Bernuula. 

At  Wilmington,  Xorth  Carolina,  to  uidoad  guns  and  take  in 
cargo  of  cotton.  This  vessel  is  also  reporte(l  to  have  nuulo 
captures  under  the  name  Olustee. 


18(M,  Mar. 


18(U.  Oit,  n. 
\mt.  Siiv.  «. 

imu,  Nov,  i.'i. 

1864,  N  (.V.  20. 


m 

m 


CLARENCE. 

Tiu^  brig  Clarence  was  captured  by  tlu^  rebel  steaiiu'r  Florida,  May  0, 
18G;{,  ami  immiu'd  with  one  twehe-ponnd  howitzer,  20  nu^n,  and  2  otU- 
cers,  umler  command  of  Lieutenant  Ree<l.  She  sui)se(pi«Mitly  <'a))tnred 
the  bark  Tacony,  .1uik>  12.  Tlu'  guns,  iS:o.,  were  transferred  to  the 
Tacony,  and  the  Clarence  burnt.  The  Clarence  was  cleared  at  tlu'  Liv- 
erpool «'Ustom-house,  NovtMuber  20,  1802,  by  W.  &  IL  Laird.  {Hunt's 
Merehants^  Mag.,  vol.  53,  448.) 


THE  FLORIDA. 


The  iron  screw  steam-gunboat  Oreto,  or  Florida,  with  three  masts, 
bark-rigged,  eight  poith«)Ies  for  giuis,  carrying  sixteen  guns,  was  built 
at  Liverpool,  February,  1802, 

>Ir.  Adams  iu>tified   Lord   Kussell   and  inclosed  evidence. 


186*.   K.l>.  IS. 


(  Vol.  2,  Claims,  page  59.'i.) 


ITT,  pufies 

b  he  must 
,  vol.  TTT, 

ovidciico. 
[;()ntiiiiie.s 
irntioii  is 

UU'll    1)10- 

torfaiiu'd 

\[\j  Aflvcn- 
coal  ami 

J//,  IK(!/C 

|)la<'e,  the 
prisoners 
s  retiiseil. 


,  L»r.(),)  to 

aiinscrii)t 
)ttoii.  be- 
litii. 

omincree 
illlgrd    to 

L^  rei)airs, 


(I  taive  ill 
ivc  made 


I,  :srav  (J, 

id  2  orti- 

cajttun'd 

d  to  tiie 

the  Liv- 


e  masts, 
was  built 

L'vidouce. 


GENERAL   APPENDIX. 


347 


IHiW,  K. 


Wia,  M.ir,  2.',. 


IWii.  April  X 


l'«il>,  M.ir.  27. 


HliS,   April  l«. 


{Piuje 


fifVi.  Aug.  I 


Lord  Russell  communicated  a  report  of  connnissiomTsot'ciUS- 
toms  that  the  Oreto  was  a  man-of-war  built  for  the  Italian  gov- 
ernment, and  was  takinj?  on  board  coal  and  ballast,     {fb.,  pmje  5".)").) 

Mr.  Adams  af;ain  addressed  Lord  Itussell  with  further  evi- 
dence,    (lb.,  jMi{/e  ."»!)!).) 

Mr.  Adams  iidbrnuHl  Mr.  Seward  that  the  vessel  had  sailed. 

Lord  Russell  acknowled<;('d  Mr.  Adams's  communications 
and  said  that  intjuiries  woidd  be  made.     {lb.,  patjc  002.) 

Lord  Russell  informed  Mr.  Adams  that  the  commissioners  of 
customs  at  Liverpool   report  that  the  Oreto  cleared  for   Pal- 
ermo and  .Jamaica  in  ballast,  and  sailed  with  a  crew  of  52  men. 
GOr>.) 

Mr.  Adams  reported  a  conversation  with  Lord  Russell,  in- 
formiufj  him  of  outrajfes  committed  by  the  Florida,  or  Oreto, 
upon  American  vessels,  and  of  the  conduct  of  tlu!  authorities  of  Nassau 
toward  this  vessel,  which  was  deenu'd  to  be  at  variance  with  the  proc- 
lamation of  neutrality.     (lb.,  pat/c  G(KS.) 

It  appears  from  the  consular  records  of  the  State  Departnu'ut  that 
the  Oreto  was  seized  at  Nassau  on  the  8th  of  June,  by  Her  Alajesty's 
gunboat  Bull-dog,  for  infringement  of  the  foreign  eidistment  act,  and  was 
released  on  tiie  arrival  of  Captain  Semmes  at  that  port  about  that  time; 
that  she  was  again  seized,  libeled,  tried  in  admiralty,  aiul  released  on  the 
2d  of  August.  It  appear«d  in  evidence  that  she  was,  when  seized,  in 
the  same  state  of  armament  and  eijuipnu'ut  as  when  she  left  Liverpool; 
that  the  Judge  held  that,  had  he  been  sitting  as  judge  at  Liverpool,  he 
shoidd  liave  condemned  her;  but  that  his  limited  jurisdiction  at  Nassau 
prevented  him  from  doing  so.  (Appendix  to  Alexandra  ease.)  She  left 
Nassau  on  the  9th  of  August;  ran  into  Mobile  -Ith  of  September; 
sailed  from  there  January  1"),  ISO;}, 

Mr.  Adams  gave  Lord  KussfU  additional  evidence  of  the  char 
acter  of  this  vessel,     (lb.,  paf/e.s  iilii,  014,  015. 

The  Florida  entered  Nassau  and  the  oflicers  dined  with  the 
governor;  she  took  onboard  jtrovisions,  also  chain-cable,  and 
rigging,  ami  ten  or  fifteen  recruits,  and  sailed  on  the.'Ust  instant.    (Tb., 
pajie  (»17.) 

Took  on  board  coal  and  provisions  at  Barbadoes,  under  pro- 
test Irom  L^nited  States  consul. 

Mr.  Atlams  communicated  to  Lord  Russell  further  evidence 
of  tlie  character  of  this  vessel.     (lb.,  pane  021).) 

Mr  Adams  ('ommunicated  to  Lord  Russell  further  infornui- 
tion  concerning  this  vessel.     (//).,  fxnje  037.) 

jNIr.  Adams  communicatcil  to  Lcuil  Russell  further  evidi''nce 
in  regard  to  this  vessel.     (Tb., page  OH.) 

JMr.  Adams  communicated  to  Lord  Itussell  further  evidence 
of  the  al)use  of  the  neutrality  of  the  island  of  Bermuda  in  tlu' 
treatment  of  this  vessel,  saying  that  she  was  allowed  to  remain  nine 
days  in  port,  and  to  make  that  port  a  base  of  ojierations  against  Amer- 
ican connuerce.     (/"/>.,  paye  05L) 

Lord  Russell  informed  Mr.  Adams  that  Her  Ma jesty's  author- 
ities at  Bermuj'a  had  exhibited  commendable  strictness  and  '*'*'  ''*^'"  ' 
diligence  in  er  forcing  the  reguhitions,  ami  that  lu)  substantial  deviation 
from  their  letter  or  spirit  took  place.     (lb.,  page  0.53.) 

Mr.  Adams  communicated  further  evidence  in  regiwd  to  this 
vessel.     (lb.,  page  (i5(J.)     Among  these  alUdavits  is  evidem;e  of 
her  arriving  in  British  waters.     (///.,  003.)     Lord  Russell  objectt'd  that 
this   proof  was    not  under    oath,  {ib.,  GOO,)   but  it  appears  to    have 
been  taken  before  a  notary. 


1M«2.     Oil.    'J, 


l«t;:i,  .i«n.  *i. 


IMIWI,  Kcl).   Z«. 


i%3,  .(uiy ; 


lmi.1,  Sept.  HI. 


!"«.   Auk.  VI. 


348 


GENERAL    APPENDIX. 


JAPAN,  ALIAS  VIRGINIA,  ALIAS  GEORGIA. 


I;! 


I 


?•  "■ 


lH)i3,   M.ir,  .'II. 


iNtW,  April  «. 


18li;i.  April  '.I. 


IHffl.   April  11., 


Tiritishownert  veasol;  w.is  built  .at  Dunbartoii,  on  tlio  Clyde. 

883.    ,r.  "c-ji^,  ^^,.j^  equipped  by  u  Liverpool  firm — Jones  &  Co.      Her 

crew  was  shipped  by  same  Liverpool  firm  for  Shaii}»liai,  and  sent  around 

to  Creenoek  in  a  steamer — Heron.    Siie  was  entered  on  the.'Jlst 

of  March,  1SG3,  as  for  Point  de  Galle  and  Uoug  Kong.     {Vol. 

II,  jxojc  G7G.) 

She  cleared  on  the  Lst  of  April.  She  left  her  anchorage  on  1*1.1  Apni  1. 
the  2d  <d'  April,  ostensibly  to  try  her  (Migines,  but  did  not  i-*'.!.  M.m  ■>. 
return.  She  had  no  armament  on  leaving  (Ireenock,  but  a  few  days 
after  her  departure  (pttfja  GTl)  u  small  steuiner  called  tlu»  Alar,  {pnyt^ 
073,)  freighted  with  guns,  shot,  shell,  »S:c.,  and  having  on  board  a  i>art- 
ner  of  the  Liverpool  firm  who  had  ('(piipped  her  and  shipped  her  cnnv, 
left  New  Haven  and  met  the  Georgia  off  the  coast  of  France,  near 
[Jshant.  Tile  cargo  of  the  Alar  was  successfully  transferred  to  the 
Georgia. 

On  the  8th  of  April  ]N[r.  Adams  bnmght  the  case  to  the  atten- 
tion of  the  IJritish  government,  and  repeatedly  thereafter,  as 
occasion  aro.se,  reminded  Her  Majesty's  government  »)f  the  uidawful  and 
piratical  character  of  the  vessel.     {Pf(fjc  0(50.) 

The  (!rew  of  the  Georgia  consisted  of  British  subjects.  On 
the  IHh  of  Ai)ril  she  left  Brest  on  her  cruise  against  conunenre 
of  the  United  States.     {Page  G87.) 

The  Alar  i)ut  into  Plymouth  on  th«^  11th  of  April,  bringing 
the  Liverpool  merchant,  who  had  directed  the  procieedings 
throughout,  and  bringing  also  fifteen  seamen  who  had  refused  to  pro- 
ceed ill  the  (reorgia,  on  learning  her  character  a>^  1  confederate  cruiser. 
The  rest  of  the  crew  remained. 

At  the  time  of  her  departure  the  Georgia  was  registered  as  the  prop- 
erty of  a  Liverpool  merchant,  a  partner  of  the  firm  which  shi|>i)e(l  the 
crew.  She  remained  the  property  of  this  i)erson  until  the  2'>U\ 
'of  .June,  when  the  register  was  canceled,  he  notifying  the  col- 
lector of  her  sale  to  foreign  owner,  Edward  Bates.  (Piufc  G77.)  From 
the  1st  of  Ai>ril  to  the  23d  of  -lune,  the  (reorgia  being  still  registered 
in  the  nanu»  of  a  Liverpool  merchant,  and  thus  ids  property,  was  (larry- 
ing  on  a  war  with  the  United  States,  with  whom  Great  liritain 
was  at  peace.  During  this  period  she  captured  the  Dictator 
and  burned  iier;  captured  and  ransomed  the  (Jriswold.     {P(f(je  <>S7.  ) 

The  crew  of  the  Georgia  was  paid  through  the  same  Liverpool  firm. 
A  copy  of  the  advanc(^-note  used  is  to  be  found  on  page  GS3.  After 
cruising  in  the  Atlantic  burning'  and  bonding  a  number  of  vessels,  the 
Georgia  put  in  at  Simons'  Bay,  Cape  of  Good  lIoi>e,  and  calked  her 
decks.  At  the  end  of  two  weeks  she  de[>arted,  continuing  her  depre- 
dations until  the  28th  of  October,  when  slie  arrived  at  Clier 
bourg.  {Pdffc  (»87.)  Many  of  the  crew  left  the  shii).  The 
wages  were  all  paid  by  the  Liverpool  firm.  The  same  firm  eidisted 
more  men  at  Liverpool;  sent  them  to  Bn>st.  (/*m/<',v  707,  708.)  The 
Georgia  left  (vherbourg  on  a  second  cruise;  was  nnsuc(;essful, 
!*.»,  M»yi.  ^^^^^j  roturned  to  Liveri)ool  on  the  1st  of  May,  18G4.  It  was  dis- 
covered that  she  had  been  sold,  and  Mr.  Adams,  on  the  7th  of 
June,  18G1,  informed  British  goverinnent  that  United  States 
did  not  recognize  validity  of  sale  in  neutral  port;  that  the  United 
States  claimed  right  to  seize  vessel  wherever  she  could  be  found.  [Paye 
710.) 


lS<k),  .111 


IW«.  April  : 


1803,  Oil.  l"*. 


IHA4.  Juni- 


le  Cly<U'. 
/().  Her 
it  around 
1  the.'Jlst 

8-.     {Vol. 

IHitl.   April  I, 
lKr,:i,  \pril  ■>. 

fVnv  (lays 
ar,  ipxfjt' 
(I  a  [>ait- 
ler  cnnv, 
ICC,  near 
(I  to  the 

lieatten- 
'after,  as 
wfiil  and 

cts.  On 
oninier(!e 

bringing 
leeedings 
[  to  i)ro- 
^  cruiser. 

he  pron- 
>l)e(l  the 
1  tiie  2;}d 
the  col- 
)  From 
gistered 
IS  (!arry- 
t  IJritain 
Dictator 
()S7.  ) 
ool  firm. 

After 
sels,  tlie 
ked  h»*r 
r  depre- 
at  Ciier 
1).  Tlie 
enlisted 
S.)  The 
ccessful, 
was  dis- 
le  7th  of 
1  States 
)  United 

[Page 


GENERAL   APPENDIX. 


349 


l«ll.  Ana.   11. 


On  the  30th  of  July  she  entered  at  the  custom-house  as  load- 
ing f<n'  Lisbon  and  Africa,  by  Edward  Bates,  the  prett-nded 
owner.     (Pof/e  722.)     On  the  llth  of  August  she  steamed  out 
to  sea,  under  British  colors,  bound  for  Lisbon,  to  Hll  an  engage 
ment  with  the  Portuguese  government  to  carry  mail  from  Lisbon   to 
Africa.     Before  f-he  reached  Lisbon  she  was  captured  by  L'nited  States 
steamship  Niagara,  ('aptain  Craven  commanding,  and  sent  to  Boston 
as  a  prize.     (Page  720.) 

On  the  l.'Jth  of  August,  Jones  &  Co.,  of  Liverpool,  w«>re  tried 
for  fitting  out  an<l  enlisting  men   for  the  pirate  .Tai)an,  alias  '■**''*'"•, 
Viiginia,  alias  tJeorgia,  before  Lord  Chief  Justice  Cockbinn  and  a 
spe(;ial  jury.    The  jury  found  them  guilty,  and  the  court  lined  John 
Jones  and  Robert  Highat  £"»0  each. 

THE  NASHVILLE. 


Hi; I,  (lit.  :vt. 


Steamer  Nashville,  carrying  two  guns,  and   flying  (confed- 
erate flag,  arrived  at  Bermiula  on  October  150,  l.S(Jl,  having 
run  out  of  Charleston  on  the  night  of  October  L*0,  lS(;i.     [iSn-  jkkjc  o3S, 
Vol.  II.) 

She  took  in  a  large  supply  of  coal  against  the  protest  of  llie  United 
States  consul.  (/S't;6'^><J//<'.sr>3S,  i")30.  Vol.  II.)  Although  thtM-omnuuider 
of  the  Nashville  had  told  the  governor  that  she  was  strictly  a  merchant- 
vessel,  (.set'  page  570,  Vol.  II,)  nevertheless  the  governor  onlered  that 
she  should  bo  treated  as  a  vessel  of  war,  and  unusual  courtesies  were 
extended  to  her  officers  by  the  officers  of  the  garrison.  {See  pages 
540,541,  ro^//.) 

On  the  5th  of  November,  1801,  she  sailed  from  Bermuda,  and 
on  the  10th  of  tlie  same  month  fell  in  with  the  American  packet- 
ship  ILuvey  Birch,  which  she  first  plundered,  ami  then  burned,  and  on 
the  2I.st  November  she  arrived  at  Southampton.     (See  p<«fes 
540,550,  Vol.  II.)  ""  " 

On  the  2(Sth  November,  1861,  iti  rei)lv  to  a  note  from  the 

It.'  Im'A    Nov    *H* 

American  minister,  Mr  Adams,  iiupiiring  "as  to  the  authority 
possessed  by  this  vessel  to  commit  so  aggressive  an  iwi  on  the  citizens 
of  a  friendly  power,  and  then  to  claim  a  refuge  in  tiie  harbors  of  Oreat 
Britain,"  Earl  llussell  says:  "I  have  to  state  that  the  Nashville  appears 
to  be  a  confederate  vessel  of  war,  her  commander  and  officers  have  com- 
missions in  the  so-styled  confederate  navy;  some  of  them  have  written 
orders  from  the  navy  department  at  Richmond  to  report  to  Lieutenant 
Pegram"  for  duty  "on  board  the  Nashville,  and  hei- cicw  hiive  signed 
articles  to  ship  in  tlie  confederate  navy."    {iSvc  page  55."»,  Vol.  If.) 

The  Briti.sh  autlu)rities  i>ractically  carrieti  out  their  <lctermination  to 
consider  the  Nashville  a  regular  man-of-war  by  detaining  the  United 
States  man-of-war  twenty-four  hours  after  th^^  former's  <leparture  from 
Southampton.     (See  j)age  it^'iH,  Vol.  J  I.) 

After  having  been  in  port  over  two  nu)nths,  having  undergone  repairs, 
and  having  taken  in  a  supply  of  coal,  the  Nashville  saile<l  Irom  South- 
ampton on  February  3.  1802.     (Sec  pages  503,  588,  580,  5t>0, 
Vol.11.)  "*''"'"■'• 

On  the  20th  of  February,  18G2,  the  Nashville  reached  IJer- 
muda,  having  met  with  no  vessels  on  the  way.  (See  page  500, 
Vol.  II.) 

While  at  Bermuda  the  Nashville  was  allowed  to  coal,  notwithstanding 
the  fact  that,  ou  the  day  before  lier  arrival,  the  govermu-  had  informed 
the  United  States  consul  that  the  British  government  had  determined 


350 


GENERAL   Ari'ENDIX. 


Wi : 


V; 


I 

I 

p'r. 


H : 


|>^   i^ 


y 


iHiia.  Kill. 


I«ft7. 


iNi:),  Niiv.  I.. 


lS(i:i,  N.i 


not  to  allow  tlio  formation  in  any  British  colony  of  ,i  coal-depot,  for 
tlu*  nsc  of  their  vessels,  hy  either  the  (J(»vernnient  of  tlu^  United  States 
or  of  the  sostylod  (Confederate  States.     (.SV'<'/)rt//e.voO(),  olM,  Vol.  fl.) 

Mr.  Allen,  the  United  States  (;onsel  at  Berrinida,  writes  that 
the  Nashville  left  Februaiy  4,  havinjj;  taken  on  board  a  hnndred 
and  fifty  tons  of  coal ;  supposed  destination,  Charleston.     [See  im</<'  ")!>!, 
Vol.  II.)  ' 

Nashville  captured  and  burnt  olf  Savannah  by  United  States  block- 
ade s<iuadron.    [llmiVn  Mvrch.  Mafj.^  vol.  'hi,  p.  447.) 

THE   UAl'l'AlIANNOCK. 

The  Rappahannock  was  built  for  the  British  j;overnnient, 
and  nauKMl  the  Victor.     She  was  sold  by  the  admiralty  in  the 
early  part  of  Noventber,  l.Sd.'}.     Ilcr  rcf^ister,  «late<l  November 
(»,  shows  that  Robert  Gorden   ('oleman,  a   British   subject,  of 
L\S  ('Icment'slane,  London,  was  sole  owner.    (  Vol.  II,  iku/c  liui.) 
She  was  delivered  to  the  purchaser  on   lOth  November,  at 
"  Sheerness,  in  an  incomplete  state,  without  masts,  sails,  oj-  ri*;- 
gin^'.     (17)/.  IV,  page -iHii.) 

Preparations  for  a  vt)ya}j;e  were  at  once  procee<led  with  rapidly,  under 
thc!  superintendeiute  of  the  <lo(;k-yard  of1i(;ials ;  the  captain  of  the  jj^ov- 
ernment  yard  having  san(rtioned  tlw  leave  of  absence  to  a  party  of  rig 
gers,  they  were  i>laced  on  board  by  the  master  rigger,  (  Vol.  II,  paf/r  732.) 
and  continued  work  until  two  «lays  after  her  arrival  at  (Jalais.  (  Vol.  II, 
poj/cs  742,  74.'i.)  While  at  Sheerness  her  name  was  changed  to  the  Scy  11a ; 
the  masts  of  Her  INraJesty's  ship  Cumberland  were  used  as  shears  to  set 
her  masts;  tin?  engine-room  stores  were:  |)Ut  on  board  wliile  sln^  lay  in 
the  stream;  these  consisted  of  gauge  (!ocks  for  the  boilers,  blocks,  and 
other  things  having  the  government  mark  upon  them  ;  they  were  ordered 
to  be  buried  under  the  coal  by  Mv.  Itumble;,  the  chief  inspector  of 
machinery  atloat  at  Sheerness,  and  Mr.  Ramsey,  the  then  ca  ptain.  (  Vol. 
II,  poije  74S.) 

It  was  given  out  that  she  was  destined  for  a  voyage  to  China.  (  Vol. 
II,  piujc  741.)  Mr.  Humble  undoubtedly  knew  the  true  character  of  the 
ship;  lie  with  the  (!ai>tain  introduced  all  tlu^  workmen  on  board,  [Vol. 
7/,  y)<f//r.s  74S-774;)  he  gave  directions  with  respect  to  the  rigging  and 
other  equipments;  heeugaged  men  indifferent  capacities,  (  Vol.  11,  ptiffv 
74."{,)  and  agreed  with  them  as  to  wages.  Similar  si>rvi(;es  were  rendered 
by  the  petty  olllcers  of  the  governuuMit  yard.  Mr.  Bagshaw,  a  foreman 
in  the  iioiler  department,  in  tlu^  absemu' of  Mr.  Rumble,  engageil  l)oiler- 
inakers  to  go  to  Calais,  in  which  transac^tion  Mr.  (Jreathea*!,  a  <',liief  en- 
giiu'cr  in  the  royal  navy,  also  particripated  as  paymaster  to  the  families 
of  the  men.     ( ]'ol.  II,  pocjc  74").) 

She  was  prepared  for  service  with  the  greatest  secirecy  and  dispatch 
as  a  confederate  piivateer,  under  (!over  and  protection  which  her  for- 
mer owneiship,  jjroximity  to  the  yard  while  being  tittetl  out,  and  the 
emplovnu'ut  of  hands  from  the  vard,  threw  around  her.  (  Vol.  II,  ptujc 
724.)  ■ 

The  ecpiipment  pr»>ceeded  up  to  the  24th  of  November.  On 
that  day  the  |)arties  interestetl  in  her  appear  to  hav<^  received 
intelligenc«' which  <'hang«Ml  tin'ir  plans,  (  To/.  //,  piKje  7.'54,)  for  in  the 
evening  ol  that  day,  about  midnight,  she  snddeidy  made  h»'r  departure, 
(  Vitl.  II,  piuje  7.'J2,)  in  a  very  imiomplete  (iondition,  with  Mr.  Reuben 
llarvey,  the  government  pilot,  in  commaiul,  in  tow  of  a  tug  boat,  (  Vol. 
It,  p<i<j('  742.)  The  master  rigger  of  Sheerness  dock-yard  was  on  Itoanl 
when  she  left,  but  returnetl  in  the  tug.  Bedding,  blankets,  and  remain- 
ing part  of  her  stores  were  put  on  board  from  the  tugboat  which  look 


depot,  for 
t«Ml  States 
f}l.  IT.) 
i^rites  that 
a  liniidied 

itPS  l)l0(!k- 


vcrmiiont, 
alty  ill  the 
NoveiiiluT 
subject,  of 
,  pnge  I'M).) 
leiiiber,  at 
lils,  o\-  rij;- 

(ll.v,  under 
f  the  }jfov- 
irty  of  YV^- 
fXKfi'  T.'ili.) 
{'Vol.  II, 
:heScvUa; 
ears  to  set 
slie  lay  in 
loeks,  and 
reordered 
speetor  of 
tain.  (  Vol. 

la.  {Vol. 
ter  of  tlie 
ard,  {Vol. 

'^\\\:£,  and 
/.  //,  }m(ic 

rendered 
I  f(H'eina.n 
;ed  boiler- 
\,  chief  en- 
e  families 


dispatch 
I  her  for- 
t,  and  tjje 
/.  //,  jUUJC 

iber.  On 
<■■  re(!eived 
or  in  tlie 
U'parhire, 
r.  Iteiiben 
oat,  (  Vol. 
on  Itoard 
d  reinain- 
hich  took 


r^i 


GENKUAL    APPENDIX. 


351 


lie\'  out  to  sea.  Soon  after  slie  left  Sheerness  tlu'  sliii)'s  name  (Scylla) 
was  painted  from  otf  her  stern,  (  Vol.  TI,  pai/r  7.'51,)  and  the  name  Uap- 
l)aliaimock  was  painted  on.     (  Vol.  II,  pofjc  r}\)'i.) 

Sheariivi'd  at  (.'alais  in  the  ni'dit  of  Wednesday,  the  2.'>t!i 
ot  November,  and  entered  the  harbor  the  next  day,  (  To/.  //, 
2)a(/i'  7.'54,)  just  previons  to  which  she  raised  the  confederate  tla^.     (  Vol. 
n\  piujc  742.) 

J)iiriii<;tlie  stay  at  Calais  of  the  Uai)pahaiiiioek,  a^t'iits  were  employed 
in  London  and  Liverpool  in  i)ro(Mirinj^  men  to  serv(^  on  her.  ( Vol.  II, 
paffc.s,  7r)()-7.sr>.)  Allotments  were  to  lie  paid  by  Messrs.  Jones  &  Co., 
of  Liverjiool.  These  certificates  were  all  si<«ned  by  Wm.  V.  A.  (,'ainp- 
bell,  the  commander  of  the  I'appahannock.  (  Vol.  II,  page  7<»L*.)  Mr. 
Knmble,  who  had  arrived  about  the  1st  of  December,  nsed  his 
inlliieiice  to  pro(;nre  enlistments.     {Vol,  1 1,  p(i(jc  74~).) 


una.  ii<T. 


The  Kappahannock   remained  at  Calais  until  July  2,  l.SO."*, 


ls(i.'i,  July  a. 


IAm.  .Inly  4. 


IHW.  July  7. 


when  she  left  that  jiort  and  arrived  at  Southampton  on  tlu 
4th,  bearing  the  naim^  of  the  lieatrice.  (  Vol.  II,  page  1\Y^.) 
Here  she  coaled  and  nunh^  her  way  to  Liverpool,  where  she  ar- 
rivi'd  on  the  7th  of  that  month.  Proceedings  were  here  insti- 
tuted against  her  by  the  United  States  (iovernineiit.  She  was 
condemned  and  sold  and  the  proceeds  of  the  sale  passed  into  the  hands 
of  the  I'nited  States. 

Although  without  any  technical  evid<'nce  upon  which  to  rest  a  remon- 
strance, the  United  States  ininister  at  London  considered  the  case  of 
the  Ivappahannock  s    peculiar  as  to  justify  him  in  making  a  representa- 
tion to  Her  Majesty's  government,  which  he  did  on  the  2Sth  of 
Xoveiiilier,  l.S(;3.     {Vol.  II, page  Til.)     Earl  Russell  replied  on 
the  oOtli  that  the  attention  of  the  proper  ollicers  had  been  (;alled 

WHS    Vov  30 

to   tlui   matter,  and  that  steps  would  be  taken   to  verify  the 
truth  of  the  statements  made.     (  Vol.  II, page  71*8.)     Furtlu'r  representa- 
tions were  made  by  ]\lr.  Adams  on  the  oth  (  Vol.  IT,  pane  7LM)) 
and   V2t\i  {Vol.  II,  page  733)  of  December,  and  again   on  the 
Kith  (  To/.  i/,j>ff(/t' 735)  of  tliat  month,  supported  liy  allidavits 
showing  the  preceedings  in  connection  witli   her  fitting  out  at 
Sheerness,  and  the  enlistment  of  men  for  service  on  her.     On  the  l<>tli, 
{Vol.  II,  737,)  Earl  Kussell,  in  reply  to  the  notes  of  the  oth  and   iL'th, 
wStates  that   Iler  Majesty's  government   are  fully  determined  to  put  in 
force  the  laws  ag:iinst  any  persons  who  have  trangressed  them  in  tiiis 
niatt«'r.    Further  evidiMice  was  furnished  by  Mr.  Adams  on  J)e-  ,ho3, nt..a3. 
cember  23,  1<S(»3,  {Vol.  II,  page  73S,)  January  J>,  (  Vol.  II,  page 
747,)  Ajiril  Tt   {Vol.  II,  page  ITA)   and   \i\,{Vol.  II,  page  704,) 
and  May  4  (  Vol.  II,  page  771)  and  23,  l.S«;4,  ( ]'ol.  II,  page  77(».) 
To  these  notes  l']arl    liussell  replied  that  the  attention  of  the 
jn'oper  departments  of  Her  Majesty's  government  had  been 
called  to  the  matter. 


I«U.  Jiin.  », 

l"";t.  Ami.'). lii. 

1*>I,  May4.2:l. 


1-«14, 


\<V 


KETRinUTlON,   AFTERWAKl)    Kl'TA- 


-SCIIOONEU. 


iiebj'l  cruiser;  originally  a  blockade-runner;  received  armament  from 
schooner  Dixie;  captured  several  prizes. 

Came  into  Nassau,  and  sold,  in  liahamas,  her  pri/e  schooner 
Hanover.     (Manuscriiit  dispatch,  Hawley,  o.) 

Was  sold  herself  in  liahamas.    Name  changed  to  Etta;  I'itta 
seized  in   New  York  by  L^nited  States  authorities.      >Iessrs. 
Henouard  \'  (3o.  have  claim  as  owners  against  United  States  for  ilam- 
ages.     {lirHixh  Blue  Bool;  yorth  America,  10, 1804.) 


|Hf,:),  K.I.. 


IHIVI.  Mir.  ■ 


352 


GENERAL    APPENDIX. 


THE  HIIENANDOATI. 


f\: 


I  vti 


I 


IMftl,  ne\.  M. 


1864.  No 


I'.l.  . 


On  Octobers,  1804,  tlio  stoaiiier  liSiurel,  of  about  .'MH>  tons, 
cleared  tVoni  Liverpool,  having  on  boanl  a  portion  of  the  late 
Alabama's  (!re\v,  one  hnntlred  men,  and  six  {?iins,  munitions,  and  stores. 
{Viuje  318.) 

The  steamer  Sea  King,  built  at  (Masgow,  of  about  1,()7()  tons 
and  lioO  horse-|K)wer,  cleared  for  JJombay,  October  8,  LSOt,  with 
a  cargo  of  (;oal  oidy.    (  Vol.  Ill,  pa<ics  ,'UJ),  .'VJO.) 

Both  vessels  pro(!ee(led  to  an  isian<l  near  Madeira,  where  the  <;argo 
of  guns  and  munitions  was  transferred  to  the  Sea  King  from  the  Laurel, 
the  former  now  assuming  the  name  of  Shenandoah.     (Payat  320,  3'Jl.) 

Mr.  Adams  submits  allidavits  concerning  the  Sea  King  to 
" "    "*  Lord  Itnssell.    (iV/e  323.) 

Earl  Russell  transmits  to  Lord  Lyons  tlie  dispatch  of  the 
I8I14.  1).,  H.  liiitish  consul  at  Tenerilfe,  showing  how  the  Sea  King  was 
transfcrr<Ml  to  the  confederates.     [Pwje  331.) 

Lord  Itussell  acknowledges  receipt  of  ^Ir.  Adams's  note  of 
November  18,  with  the  depositions.     (P(nje  335.) 

Lor«l  Russell  informs  Mr.  Adams  that  the  sale  of  the  Sea  King- 
is  stated  to  have  been  regular.    [Piuje  337.) 

United  States  consul  at  Melbourne  informs  Mr.  Seward  of  the 
arrival  of  the  Shenandoah  there.     She  is  recognize<l  as  a  bel- 
ligerent, allowed  to  go  into  dock  for  repairs,  to  coal,  and  ship  a  crew. 
Authorities  render  assistance.     (Pages  384-444.) 

Mr.  Adams  calls  Lord  Russr'l's  attention  to  further  proceed- 
ings of  the  Laurel  at  Nassau.     Remonstrates  against  her  clear- 
ance with  confederate  mails,  and  demands  her  detention.    {Poffe  330.) 
Lord  Russell  replies  that  ettbrts  were  made  to  prevent  viola- 
tion  ot  law  at  Nassau,  and  will  inquire  as  to  her  carrying  con- 
federate mail.    {Pitfie  341.) 

Lord  Russell  informs  Mr.  Adams  that  the  proceedings  of  the 
Laurel  may  have  rendered  her  liable  to  capture  on  the  high 
seas,  but  that  carrying  the  mail  was  not  unlawful.    {Paffe  344.) 
Mr.  Adams  lays  before  Lord  Russell  evidence  ot  the  Shenan- 
doah's depredations  in  the  Brazilian  waters.     {Pages  345-349.) 
Lord  Russell  replies  that  Her  Majesty's  government  have  done 
all  that  could  be  done  legally  to  stop  the  evil  complained  of. 
{Pages  350-357.) 

Mr.  Seward  incloses  to  Mr.  Adams  the  Jlelbourne  dispatch 
180.,,  ^'"'  '  j^^ui  pj^pjij-s  jiiiti  11  claim  for  indemnilication,  which  Mr.  Adams 
submits  to  Lord  Russell  on  October  21,  reviewing  the  Shenandoah's  his- 
tory.    {Pages  3G9-37G  et  seq,  to  page  444.) 

Lord  Russell  acknowledges  receipt  of  these  papers.     {Page 
444.) 

Shenandoah  arrives  at  Liverpool,  and  is  surrendered  and  re- 
ceived by  British  authorities.     {Pages  444,  445.) 

Mr.  Adams  will  receive  the  vessel,  but  calls  for  punishment 
ot  her  crew.    (Page  447.) 

Earl  Clarendon  replies  that  attention  will  be  given  to  Mr. 
Adams's  note.    {Page  448.) 

Mr.  Dudley  gives  the  history  of  the  Shenandoah's  transfer 
to  his  custody.     {Pages  454,  455.) 
Earl  Clarendon  informs  Mr.  Adams  that  the  government 
"**'*"  "will  not  detain  the  Shenandoah's  crew,  and  it  is  reported  that 
none  of  them  are  British  subjects.    {Pages  4G0,  4G1.) 


lMk'>.    ¥i\>.    1. 


1M5.  Feb.  «a 


IfWi,    Mar. 


IMA,   April  )>. 


1865,   April  r. 


1866,   Mar   4. 


1801.   Oil. 


iHd.').  Ni.v.  r. 


ItKtt,    Nov. 


lafiTi.    Nov.  7. 


1884,  Nov.  II. 


m 


GENERAL    APPENDIX. 


353 


\0i)  tons, 
th(*  liitc 

(I  StoH'S. 

070  tons 
S04,  with 

lie  (!iirso 
ii  Liiiirel, 

),  ;vji.) 

King  to 

ih  of  the 
Ivinj?  was 

s  noto  of 

Sea  King 

ird  of  the 

as  a  bel- 

[)  a  crew. 

•  proeeed- 
lier  cUnir- 
(fe  3:i0.) 
iMit  viola- 
ying  con- 

igs  of  the 

the  high 

Vtu/e  3-14.) 

\  Slienan- 

j4r)-;uo.) 

lave  clone 
ainetl  of. 

disi)atch 
r.  Adams 
oah'a  his- 

■s.    {Page 

il  and  re- 

nishnient 

n  to  Mr. 

transfer 

rernment 
[•ted  that 


\mV>,  Nnv    14, 


IMU,  Nov.  17, 


l*t,V  Niiv,  M. 


I*i.'i,  Ni) 


iHii'i,  n.i'.  »n. 


IWVi.  n-r.  .K). 


txm. 


IHfifi.  ,I;in.  19. 


Mr.  Adams  exproasos  his  dis.satisfaction  to  Lord  Chirendon 
over  the  reh»ase  of  the  crew.     {l\vjt'H  402,  40.'{.) 

Lonl  Chuendon  rei)re.sents,  in  reply,  tiiat  no  evidence  is  con- 
tained in  the  papers  heretofore  snbmitted  warranting  a  prose- 
cuti<m.    {ra()mW\  \\)\.) 

Ileply  of  Lord  Clarendon  to  Mr.  A<lams's  note  of  Ocrtober  21, 
atllrniing  that  tlie  action  of  liis  government  in  relation  to  the 
Shenandoah  is  according  to  law,  and  no  other  course  was  open  to  it  thau 
that  followed.     {Pagea  40i.  40.S.) 

Mr.  Seward  direc'ts  Mr.  Adams  to  inform  Lord  Clareiidon  of 
the  (loverninent's  views  as  to  the  depredations  of  the  Shenan- 
doah and  lelease  of  her  crew.     (Pngen  4iiJ>,  470.) 

Mr.  Adams  transmits  to  Lonl  Claremhni  full  testimony  con- 
cerning the  cruise  of  the  Shenandoah,  her  armament  and  crew. 
(/Vflff'«47r)-41)L) 

The  above  acknowledged  by  Lord  Clarendon.     {Pop^'  401.) 

Lord  (JIarendon  states  that  Mr.  Adams's  letter  of  December 
28  contains  the  first  evidence  submitted  bearing  on  the  piracy 
of  \Va«ldell,  and  breach  of  the  foreign-enlistment  act,  but  it  was  not  sufii- 
cient  for  conviction.     {PageH  401-40.i.) 

Lord  Claren<lon  to  Sir  F.  IJru(!e  replies  to  Mr.  Seward's  dis- 
patch of  November  30,  atlirming  the  strictly  legal  condn«!t  of 
his  government  in  discharging  the  Shenandoah's  crew,  and  refusal  to 
prosecute  forjjiracy.  Inquiries  will  be  made  concerning  the  action  of  the 
Melbourne  authorities.     [VmjcH  494-408.) 

Mr.  Seward  informs  Sir  F.  Bruce,  in  reply  to  Lord  Clarendon's 
dispat(!h  of  January  10,  that  the  convictions  of  his  government 
had  not  been  changed  thereby.    {Vngc  408.) 

Lord  Clarendon   reviews   the  testimony  submitted  by  Mr. 
Adams  on  Decemher  28,  with  a  letter  from  the  governor  of  Vic- 
toria, as  to  the  charges  concerning  tlie  action  of  tlie  authorities  there, 
and  theenlistmentof  seamen  on  the  Shenandoah.    {Pagat  41M)-507.) 

THE  SUMTER. 

The  Sumter  was  an  American-built  vessel,  trading  between 
New  Orleans  and  Havana. 

Having  been  armed  and  equipped  as  a  vessel  of  war,  she  ran 
the  bh)clvade  at  New  Orleans. 

Mr.  Adams  informed  Lord  Russell  that  she  had  been  supplied 
with  coal  and  other  necessaries  at  Trinidad,  which  is  conq>lained 
of  as  a  breach  of  the  proclamation  of  neutrality.    (  Vol.  11  Claims^  page 
484,  5.) 

Lonl  Russell  denied  that  there  had  been,  in  what  was  done,  a 
violation  of  neutrality.     ( lb.,  page  48(5.) 

She  arrived  at  Gibraltar,  where  she  received  a  new  anchor 
and  cable.  Owing  to  the  representations  of  the  American  con- 
sul, she  was  not  able  to  sup])ly  herself  with  coal. 

She  was  sold  at  auction,    (lb.,  510.) 

She  proceeded  to  Liverpool,    (/ft.,  o  10,  .520.) 

Mr.  Adams  invited  Lord  Russell's  attention,  claiming  that  "^'^^'^ 
the  sale  was  invalid,  and  that  her  remaining  in  port  was  in  violation  of 
the  Queen's  proclamation.  Lord  Russell  denied  this,  and  a  correspond- 
ence ensued,    {lb.,  page  520  et  seq.) 

She  sailed  from  Liverpool  with  a  cargo  of  guns  and  supplies, 
and  was  afterward  wrecked  at  Charleston. 
23  H 


IWfl,  F.h.  9. 


IS66,  ,Tiinc  fl. 


IHiil   ,r.ini.»). 


IHiil,  Shj.i.  .1(1. 


ISfil,  Ori.   4. 


\K6t,  Jnn.  1«. 


IHRJ,  Keh.  1". 
h.  IB. 


IW3,  July  3, 


354 


GENERAL  APPENDIX, 


THE  TALLAHASSEE. 


IMU.  Aim.  I.V 


This  vessel  was  originally  u  bloekade-runner,  HiltiHlibuilt,  called  tlie 
Atlanta. 

In  1H04,  as  appears  l»y  a  letter  from  Mr.   Sttward  to  Mr. 
Adams,  she  ran  ont  of  W'llniington  armed,  and  commenced 
ernisinp:  and  pillajjinj;  oil' New  Yoik. 

She  was  retionverted  into  a  mendiantman,  christened  tlu'  (Chameleon, 
and  took  a  carjjo  to  Liverpool,  where  at  the  <!lose  of  the  war  she  was 
claimed  by  th<t  United  States  and  sold,  and  the  proceeds  paid  to  the 
cre«lit  of  the  United  States. 

For  the  correspondence  in  regard  to  her  see  Vol.  Ill  Claims, page  314 
et  seq. 

TACONY. 


lltCil.  Jn 


The  Tacony,  formerly  the  Clarence,  Lientenanl  Reed,  made 
several  captures,  and  was  destroyed  by  her  crew  June  2li,  18(i;i, 
who  left  in  the  schooner  Archer,  and  were  substMpiently  captured  by  an 
expedition  from  Tortland.     {JIuuVh  Mtrchanfit  May.,  vol.  53,  448.) 


THE   TUSCALOOSA. 


I  u 


li    :: 


i 


IHIK.   .iMtir  24 


]HtA,  Alia.  7. 


The  Tuscaloosa,  originally  called  the  Conrad,  was  captured 
off  the  coast  of  Jirazil  by  the  Alaltama.  linns  were  placu'd 
upon  her,  and  she  was  ]>ut  in  charge  of  a  lieuteimnt  and  ten  men,  and 
employed  as  tender  of  the  Alabama. 

She  entered  Simon's  IJay,  remaining  there  seven  days;  her 
cargo  was  sold  to  a  British  merchant  in  Cape  Town.  She  was 
detained  by  Ilritish  authorities,  and  subsequently  released,  with  warn- 
ing to  the  cajttain  of  the  Alabama  that  ships  of  war  of  the  belligerents 
were  not  allowed  to  bring  prizes  into  liritisl;  ports. 

She  made  two  captures  in  her  character  of  rebel  cruiser.  {Claims,  tbc, 
vol.  — .) 

3.  AMOUNT  OF  CLALMS. 

1.  ClaimK  bvloiighig  to  the  Uniltd  States. 

The  United  States  should  be  reimbursed  for  all  the  actual  outlay 
expended  in  the  pursuit  and  capture  of  the  rebel  cruisers. 

They  may  also  fairly  clai  n,  as  representing  the  community,  to  be 
re  imbursed  tor  the  outlay  caused  by  the  increased  i)remium  and  en- 
hanced freights  resulting  from  the  special  risk  growing  out  of  the  ope- 
rations of  the  rebel  cruisers  fitted  out  in  English  ports. 

2.  Claims  of  individitnls. 

The  following  is  believed  to  be  a  proximately  complete  statement  of 
the  amount  of  claims  thus  far  presented  to  the  Department  of  State  for 
injuries  committed  by  the  rebel  cruisers: 

By  the  Alabama $5, 243, 103  00 

]ty  the  Boston 400  00 

Bv  the  Chickamauga 114, 140  85 

Bv  the  Clarence 14, 520  00 

Bv  the  Florida  3, 020, 448  98 

Bv  the  Georgia 320,35150 

By  the  Nashville 70, 583  95 


called  tlie 

rd  to  Mr. 
otnineiiced 

'li>iiii<>U*on, 
nr  slu'  was 
»aid  to  tliu 

iHfpage  314 


Iced,  made 
I  ('22,  18(i;j, 
iihmI  by  au 

148.) 


a  captnrod 
I't'iv  pla(!»'d 
1  iiiuii,  and 

days;  her 
Slu'  wa8 
with  warn- 
>elliyeiTnts 

Jlaims,  drc, 


;iial  outlay 

iiity,  to  be 
lilt  and  eii- 
of  the  ope- 


atement  of 
of  State  for 


245, 103  00 
400  00 
114,140  85 

14, 520  0() 
020, 448  98 
320,351  50 

70,583  95 


,                                                OKNKUAL    APPKNDIX.  '}")^) 

Bv  tlie  Oinsteo ^''2,  SCO  00 

liv  tlie  KHiibution 20, 0S2  20 

llv  theHallie 5,510  (10 

IJv  the  Slieiiandoah 4,  470,  100  3(5 

Jl'v  the  Sumter 2,  250  (lO 

n\  theTaeouv 8,  H"'  00 

By  the  Tallahassee   272,  8(;4  3S 

Total 13,  (it)2,  5(iO  34 


'^Rfl 


4.  TIIK  ni'TV  OFfJKKAT  HKITAIN'TO  KKMAIN  XKI  TIfAL.  AM>  TO  KM(»Ki;K 
THK  NKUTKALITY  Ol"  HKMISII  HllUKCTS  DllM.NCi  TIIK  fONTKST. 

It  will  not  be  denied  that  v. 'latever  «)bIi<jalioii  there  may  be  to  main- 
tain a  neutral  position  in  a  war  i..  iween  two  lecoj^ni/ed  soverij;n  powers, 
exists  eertainly  to  an  e(pial  extent  in  eivil  war  in  wliieh  both  parties 
are  iiM'ojjnized  as  bellij-fieiits,  and  with  still  f{reat«>r  force  in  a  eoiitest 
between  a  friendly  p)vet  iimeiit  and  an  insur^eiir  portion  of  its  popula- 
tion, whose  resistance  to  its  authority  has  not  assumed  the  proportions 
and  attained  the  pn»ltal»ility  of  success  to  entitle  it  to  be  recoy;ni/e<l  by 
other  nati(Uis  as  a  b«'lli{,'ereiit. 

ill  18(!7  the  liritisli  ^overnnieiit  appointed  a  commission  to  iiMpiire 
into  ami  ciuisider  the  character,  workinjj;,  and  etVect  of  the  Ibitisli  laws 
available  for  the  enforcement  of  iieutridity  durinj;  the  existence  of 
hostilities  between  other  states  v  ith  wIkuii  (Ireat  IJritaiii  was  at  inace. 
In  1S(>8  this  c<uiiiiiissiou  made  a  r«>port,  (;ontainiii^,  amon^'  other  things 
ill  the  appendix,  a  nieiiioranduiii  by  Mr.  Abbott  (now  Lord  Tciiteideii) 
of  the  variiuis  f»reij;n  enlistment  acts  of  (Jrcat  Britain  and  other  ctuiP 
tries,  iucludin<f  the  Unitetl  Htates.  This  meiiioranduiii  is  to  be  loniid 
in  the  fourth  volume  of  ( 'laims  aj;ainst  (Jreat  Britain,  jtaye  0;»  it  saj. 

It  resulted  from  this  rep(ut  that  the  comprehensive  enlistment  act, 
which  may  be  found  in  the  "  Foreijjfii  Ilelations  for  1870,"  pnge  158,  was 
passed. 

It  is  not  supposed  that  the  liability  of  (heat  Britain  to  indemnify 
individual  hjsses  occasioned  by  the  several  cruisers  will  be  seriously 
disi)uted,  if  it  be  first  establislied  that  the  cruisers  were  constructed, 
equipped,  armed,  or  reiiifonred  in  her  jiorts,  in  violati«ui  of  her  inter- 
uational  oblij^ations  to  the  United  States.  But  to  make  that  point  sure, 
the  followiii}?  correspoiMlence  (not  c(Uitaiiie<l  in  Mr.  Abbott's  memo- 
randum) between  Mr.  tlcOerson,  then  Secretary  of  State,  and  Mr.  Ham- 
mond, British  minister  at  VVashiuj;ton,  is  intnxliiced.  This  c(Uiespon- 
denee  jjrew  out  of  the  illefjfal  acts  ccMiimitted  by  French  cruisers,  alludeil 
to  in  Mr.  Abbott's  memorandum.  It  is  to  be  observed  that  this  ciures- 
poiidcnee  took  ])lace  before  any  statute  or  muiii(;ipal  law  had  b(>eii 
enacted  by  the  United  States,  and  the  <luty  of  the  United  States  in  that 
respe(!t  is  placed  upon  its  international  <»bli}>atioiis  to  (Ireat  Britain; 
and  also  that  the  action  of  the  United  States  was  taken  witlnMit  any 
information  furnished  by  any  agent  or  representative  of  the  liritish 
govenimuut. 

ilr.  Jefferson  to  Mr.  Hammond, 

Oeiimantowx,  November  14,  ITDU. 
Sir  :  I  have  to  acl\iio\vli>(lj;««  tlie  receipt  of  yoni-  lutter  of  tim  7th  iiiHtunt  on  tlio 
siilijei't  of  thf  llritisli  hhip  l{o«hain]>t()ii,  taki'ii  uiiil  hciU  into  Haltiinure  by  the  Ficiich 
privntevr  the  Iiidtmtry,  an  arnietl  Hchooner  of  San  Duiniii;;<k,  whicli  JHHn^^rcHtetl  to  havo 
augmented  her  foire  at  Haltiniore  liefore  the  captnre.  On  tliis  cireuniHtunce,  <leniaud 
iH  grounded  that  the  prize  Hhe  hua  made  ahull  bu  restored. 


i55G 


GENKRAL    AJTENDIX. 


I 


hiU 


¥. 


1  Ui 


IJi'Ciiri'  1  |i!oci'i'(l  ri(  (lie  iniitlcrs  ui  fiut  in  lliin  cfuto.  I  will  tiike  tho  liborty  of  cuUiiijf 
yoiii-  alt. -Ill ion  In  ll«'  rules  whicli  art-  to  j^ovcrii  it.     'I'Ik-.sc  ufi' — 

iKt.  Tint  rest  it  Ml  ion  ol'  iiri/i-s  liai  ix't-n  inmlt'  liy  llm  KxcrntiNi-  of  the  I'nitcd  Slistt'.s 
only  in  the  two  fnsvn  nt'  ntiitnic  with  in  llit-ir  juried  id  ion,  hy  arnicil  vcmsi'Is  ori^rinaljy 
••oiistituttMl  Hnch  willioitt  lli^  liniilM  ol'  the  rmled  .Stales;  oc,  'Jil,  .'f  eajitnre  either 
wilhin  or  wttliont  their  Jiii  i.stliclioii,  hy  arnieil  n  e.s.seis,  ori]L!;iiially  c.  nsttlnle<l  sueli 
within  tht-  limits   ,1'  the  I'niled  Stales,  whieh   last  have  heen  i  ailed  proseiihed  ve^^sids. 

•Jd.  'I'-i'.l  ill  Miililarx  e(|iii|in)enlH  wi;hin  I  he  ports  of  Ihe  I'niled  Stnles  are  forl)id<ieti 
lolhe  Vessels  ol  the  helii^erenl  powers,  even  W  here  t  llev  ha\  i-  1m  en  eonsi  it  nied  Vessels 
(d'  war  liehne  tin  ii  :iiii'.al  in  .mi  ports;  atnl  where  »neh  <'i|nipmenls  ha\e  heen  inadti 
hifore  deteelion,  Ihev  are  ordi'l'ed  to  he  sn)>pri-.ssed  when  delei-ted,  ami  the  Vess<d  re- 
<lneed  lo  her  ori^in;d  condition.  KnI.  if  they  eseajie  iiele''*ion  allo^rether,  depail  anil 
imike  pii/.es,  the  I-',Xfenl i ve  has  not    nnderlaken  to  rt-r,...re  the  prizes. 

Wit h  due  eare  it  eati  si-ai'eely  happ<'ii  that  ndlitary  ei|iii)itnentH  of  any  ina^iiilndit 
hhall  escape  diseuvory;  those  whieh  aie  small  may  so'.neiinn-s.  jierhap.s,  escape,  hist  to 
pursue  these  so  far  as  i.i  decide  Ih.il  the  smallest  eircnmst.iiM'.'s  of  military  ii|nipnient 
lea  vessel  in  our  ))oits  shall  invaiitlale  her  prizes  lhron;i{h  ail  tune,  would  he  a  mea^uro 
of  incaienlahle  eonsei|ueneeH,  Alul  sinc«-  (Uir  inlellelence  nnist  he  ^{overued  hy  soini) 
;;eneral  rule,  ami  helween  |i;reat  and  snndl  ei|uipment.s  no  pi'acti<-ahle  line  of  distiuetitm 
can  he  drawn.  \%  will  he  attended  widt  iesH  evil  on  tlie  wh<de  to  rely  on  the  I'l'licieimy 
tit  the  nn-ans  ol'  pri'venlion,  tha<  iliey  'vill  reach  will:  lertainly  eiiuipnu'iils  of  any 
nia;;nit  ude,  and  t  he  ^real  uia.'^  id'  thost  <if  snudler  impoilance  aUo  ;  and  if  sinuc  should 
in  theeveM  oeape  all  our  \  i<rilaiiee,  to  coiisidei  these  as  ei  the  niiniher  of  cases  whi"h 
will  at  "inicH  hadlt- the  restraints  of  the  wisest  and  hcHl-jjnarded  rules  whicli  human 
I'oiesijLfht  can  de\  ise.  And  I  think  we  iiia\  safely  rely  th.tl  since  the  re;;ulalioii.s  which 
;;o|  into  a  couise  of  execulion  ahoiit  the  middle  of  Ai)t;'i:<t  lattt,  it  IH  Hcui'ctdy  poH.sihli: 
that  ei{Uipmenls  td°  any   importanci-  should  escape  discovery. 

'J'liese  principles  showiii;;  that  no  ilemand  of  reslitiilion  )i«»s  on  the  };roiind  of  n 
inei<-  miii  ary  aheraiion,  01  an  :in>ininentatioii  of  forci>,  I  will  coiiHidiM' y<nir  letter  only 
lis  a  eomphiint  that  the  orders  of  ;iie  I'lisideiil  ]>rol,ihit iuj;;  these  have  not  had  their 
ellrcl  in  <lie  case  of  ilie  Industry,  and  ii)i|uire  wiiether,  it'  this  he  so,  it  has  happeiie.tl 
I'ithei  ln-n  nej^lecl  or  connivance  in  those  ili;i  r;.;cd  \\ith  I  he  I'vecution  of  ihes:  orderN. 
I'or  this  wciiiu^l  r  •  ^ort  to  fads,  which  shall  he  taken  I'loni  the  evidence  furnished  hy 
yonrsell  and  the  li.ilish  vice-consut  at  H.iltiuiore,  and  from  that  vvliich  shall  accoiu- 
pany  ll  is  Idler. 

Alioii  ihe  he;;iiinint;  <d' Aumnst  the  Industry  is  said  to  have  arii\eil  at  Itsiltiinoro 
withll'.e  I'lench  lied  from  San  lioininjjo.  The  particular  slate  of  her  arniaincnl  on 
her  ari'.val  is  lately  i|Uvstioned,  hut  it  is  not  (|Uesi>oned  that  she  v\as:in  armed  vssel 
of  some  dcjurei'.  Tiie  ]'",\eculive  ha^  injj;  received  an  intiimilio-i  thai  two  vt^ssels  wero 
•Mjuin  tin;;  ■hemselves  at  Itallime'e  (or  a  eniise,  a  letter  WIS,  oil  the  lilh  of  Au;;ust, 
iiiidressed  li  the  Secrdary  of  W'.u  lo  rhe  j^iiveruor  of  M.irylaiid,  desiring  an  iinpiiry 
into  the  lail.  In  his  ahsence,  the  executive  eo\iitcil  of  Maiyland  chai>;ed  one  of  their 
own  liody,  |,ii>  Hon.  Mr.  Kilty,  with  the  ini|iiiry.  He  proceeded  to  M.illiniore,  and, 
alter  I  wo  ila>  s"  exam  i  nation,  Ion  ml  110  vessel  answering;  I  he  deseripiion  of  those  wl  icli 
were  the  ohjcci  id' his  inniiii\\.  He  then  en;{aKed  the  llrilisli  vice  consi.l  in  the  searidi, 
who  was  ml  aide,  any  more  than  liiuis  If  lo  discover  any  such  .issels.  Captain  Kilty, 
however, oliserviiii;  a  -choouer,  whiidi  appear:  li  to  have  In  en  making  .some  ei|uipuieiits 
lor  a  end  <e,  to  lm\  e  aihled  to  her  j.iun~!,  and  made  some  alleraiion  to  her  waist,  lho.<i{ht 
thesn  eirciimstaiici's  m' riled  examinatioi),  thimi;li  the  ruli  s  ol'  Au^iitt  had  not  yet, 
a;i|)i  ai'ed.  l''iudir<;>,  tln>l  ids  im|uiries  itxciteil  suspicion,  and  feaiiu!.;  the  vessel  nti^lit 
he  t/ididrawii,  he  had.  her  sei/ed,  anil  piocied.d  in  the  iiivcstiuation.  M  '  found  thai 
sli.>wiis  the  M-hooiii  r  Inilustry,  Caplain  Carvin,  from  .San  |)omin;;(i;  that  she  had 
hci'ii  an  armed  vessel  for  three  ye:irs  hefore  her  eoniin;!  here,  and  .is  late  as  April  last 
ha  \  moniiicd  sixteen  i^:mf  *  that  sli(>  now  mounted  oiily  I  welve,  and  he  could  not  learn 
Iha'  slie  had  procnied  atiy  ^  lliesi  'ir  done  any!  uiii;ri-lHe,  ev'seiitial  to  her  as  a  pri\a!ecr, 
ill  IhdtimiM'e.  He  ihend'ore  disciiatyed  her,  and  on  the -J. Idol'  Auy;ust  the  executi' u 
louncil  made  the  repoil  to  the  Secretary  of  \V.ir,  of  which  I  im  lose  you  n  copy. 

Ahont  a  lorlni;^ht  after  this  (Si-pteniher  i',)  you  add  d  to  a  Idler  on  other  hiisiness  a 
hhort  parai^raph.  sayin;;  lliat  ymi  had  la'ely  receive. 1  informaliou  lliii'  a  vessel  uauied 
the  Industry  had.  within  the  last  live  e.rsix  weeks,  heen  armed  ni.iiiued,  and  eipiippcd 
in  the  |iort  of  itallimore.  The  proeeedin;;'s  before  nieiilioiied,  Inivin^  heen  in  another 
J>i'partment,  were  not  tin  11  known  tome.  I  ihend'ore  ciutlil  onlv  comtiinnicate  this 
l(al,l;iia|.ll  lo  the  propel  I  lepaiHiuieid .  The  separation  of  the  I'lxecutive  within  a  week 
lifter  prevented  any  <  \plan.itions  oil  the  suhjeci,  and  without  Iheiii  ilwasiioi  in  iii> 
power  eitli<>r  to  eoulrovert  or  admit  the  infinniatioii  ymi  li.id  receiviMl.  I'lider  tli<M) 
circiimsiaiices  I  think  you  innst  he  sensihle,  sir,  that  your  eiinelusioiis  friiii  my  sileiici;, 
that  I  re^i'irded  the  fact  a.s  proved,  was  not  a  very  necessary  oiie, 

.New  iiH|iiirieH  at  that  liiiie  could  not  have  prevented  the  depiirtuie  of  the  privateor 
or  t!ie  capture  id°  the  K'oehamplon,  for  the  piisatecrhad  then  heen  out  fi>r  some  iiiii«, 
tliu  Kuuhiuiiptoii  wau  aliuiidy  taken,  and  was  arrivin^  at   Kaltinioti' ;  w  hit  h  she  did 


, 


f  of  CuUill}r 

litt'il  Stutcs 
s  (iri}riii!illy 
itiiri'  citliiT 
(dili-il  siicli 

re  finliiiliicii 

lllcil    Vt'.--*l'ls 

■  lll't'll  iiiiulo 

W.  Vessel  le- 

'lepaK  ,'Uiil 

'  iiiaKiiiluilt) 
(:it)>e,  liiit  t(i 
,'  ei|lli|illUMlt 
•(•  ii  llieu'4lll'0 
eil  liy  Ndino 
rili^tiiietioii 
u'  »!lli<;ieti(;y 
eiit!*  of  any 
stnne  hh^uiltl 
ra-^eH  \vlii"li 
liirli  lininaii 
tinii.s  wliieh 
;t"ly  |U)»H)lili; 

r  letter  only 
III  liail  tlteir 
IIN  lia|i|M-lletl 
lies:  orileiH. 
urnislieil  liy 
iliull  aceoiii- 

t    MallipKiro 

I  lliaitielil  oil 
niieil  VM.iel 
esselH  Welt' 
»»('  Au;;llst, 
til  iiii|iiii'y 
le  111'  llieir 
iMce,  and, 

ICIMC    wl   it'll 

the  search, 
ilaiii  Kilty, 
i|iiipiiieiits 

St,  thn.'iiht 
III  ll'it  yet 
^■•el  liiinhl. 

tOlillll    lll.li 

It  she  hail 
A|M'il  last 
I  not  learik 
t  |iri\  ateer, 
esecilli".  t) 

'I'.v. 

Iiii-<in('*e«  ft 
lei  iiaiiieil 

1  ei|lli|i|)i'il 

III  aiiul  hei' 

llirile  this 
LIU  a    week 

iiul  III  my 
inler  thiMi 
II \  silence, 

privufcnr 
smile  iim(<. 
ieh  "lie  (lid 


(;exkual  atpkndix. 


3')? 


a1>e',,t  tlio  day  "f  th"  dat(>  of  your  letter.  After  lier  arrival  new  witnewses  have  emno 
forward  to  iiidve  that  the  Iiidiitfry  had  inaile  moiiic  military  ei|iii|imeiits  at  Miltimon* 
liefore  her  ernise.  The  atlidavits  taken  hy  the  jlritish  viee-cousnl  are  dated  aliuiit  niin> 
(»r  ten  days  after  fhi'  date  of  yonr  letter  anil  ari'i\al  of  the  ltiieliam|itoii :  and  we  have 
on'v  to  lament  that  those  witnesses  ha. I  not  niveii  their  information  to  the  viee-eonsiil 
wIk'Ii  Nfr.  Kilty  eiijiiiijed  his  aid  ir.  the  ini|niries  he  was  makin;;,  and  when  it  would 
have  hail  the  eti'eet  of  onr  detaitlin;;  Mie  privateer  till  she  shonlil  ha\e  reduced  herself 

to  th ndition  in  which  nhe   was  v  ,icn  she   ariixt'd   in   oiir  iiorts,  il'  she  had  reallv 

added  anything  to  her  then  forci .  lUxX  supposing  the  testimony  Just  iind  full,  (tlioii'.li 
taken  CI-  fuirti',  and  not  iiiidei  the  Ie;j;al  sanction  of  an  oatli.l  yt  the  governor's  ret'i<  <al 
ti.  restore  the  nrize  was  jierfectly  propel-,  for,  as  has  heeii  !iet'ore  oliserved.  restitiilioii 
lias  never  Ween  mad  liy  the  l'',\ec.ntive,  nor  can  he  made,  on  a  mere  clandestine  altera- 
tion or  aii};nieiit:ition  of  military  ei|n'pnieiit,  which  was  r.ll  that  the  new  lestiniony 
tended  to  prove. 

Not withstandini;,  however,  that  tlic  President  thought  the  informatioi  obtained  on 
the  former  occasion  had  cleared  this  privateer  from  anv  \vell-^ri>iiiiil'  d  can  c  of  arrest , 
yet  that  which  yon  liuve  now  olVeied  fipeiis  a  |iossiliilify  that  the  fori'icv  was  defective. 
He  IniH,  theietore,  desired  new  impiirv  to  lie  made  liefore  a  ma^istrat.'  K-i^ally  aiithor- 
i/.ed  to  administer  an  oath  iimi  iiidilfereiit  to  liotli  parties;  and  should  the  result  he 
that  the  vessel  did  really  make  any  military  e(|iiipnicnts  in  our  ports,  iiistrnctious  will 
he  i^ivcn  to  rednce  her  to  her  original  coii'  ition  whenever  she  shall  a;;ain  come  into 
(»nr  ports. 

On  the  whole, sir.  1  hope  yon  will  perceive  that,  on  the  first  intimation.  tlii'on;;li  their 
own  cli.-iiiiiels,  and  withoni  wailinu  for  iiitormation  on  your  part,  that  a  vessel  was 
making;  military  e<|nipiiiciits  at  l>:.ltimore.  t he  Kvcciilive  took  the  liest  measures  lor 
ini|nii  in;;  into  the  fac<,  in  order  to  prevt  nt  or  suppress  such  ei|iiipmeiils  ;  that  an  otticer 
of  hi;;jh  icspcil.ihility  was  c!iait;ed  wiih  the  ini|iiiry;  tliat  he  made  it  with  lireat  dili- 
irence  himself,  and  eny;ai;ed  similar  iin|nirics  on  the  p.art  of  your  vice-consul  ;  that 
neither  of  them  could  Iind  that  this  privateer  had  made  such  ei|nipiiients,  wr,  of  course  , 
thai  there  was  any  ^loiind  for  redncin^  or  detaininji  her :  that  at  the  date  of  yoiir 
letter  of  Septemlier  I)  (the  tirst  intimat  ion  received  from  ymi )  the  privateer  was  <le- 
parlcd,  had  taken  her  pri/.c, and  that  prize  was  arriving;  jn  poi-;  :  that  the  new  evidence, 
taken  ten  days  after  that  arrival,  c. mi  produce  no  other  elVect  than  the  instil  nl ion  o|  a 

new  iii(|iiiry,  and  a  lednction  ot'  the  for if  the  privateer,  should  she  appear  to  lia\c 

niii'le  any  military  allcra'ions  or  aii;;iiieiitatioii,  on  her  ri'tiirn  into  oiir  ports  ;  and  that 

in  no  part  id'  this  pr lure  \-<  ilice  the  smallest  jjronnd  for  imputing  cither  iie;;li;.;ence 

or  cniini\ancc  to  any  of  tin-  otiiceis  w  ho  have  ai'ied  in  il. 

I  lia\e  the  honor  to  lie,  sir,  with  much  respect,  youi'M,  Ac, 

TH.  .IKIT'KHSO.N. 


Mr.  Uricc  to  Mr.  hiioj;  Hecrttarii  of  H'or. 

.\ss\i'n\.is,  Mi>,, 
//;  Ciiiiiiil,  .hiijiinl  "j;!,  IT'.Kt. 

Slii:  Yonr  eninmimiciitintiM  of  the  (»tli  instant  ;iiiivcd  in  the  alisenee  of  (iovernor 
I ,  who  is  i^one  to  the  N'ii'uinia  Sprin^fs.  They  were,  o|'  coiiise,  taken  into  consider- 
ation hy  the  council,  whose  as-.istaiice  the  ^ovel'nor,  for  reasiiiis  stated  to  \t>n  in  his 
letter  of  the  lith  .Inne  last,  has  constantly  rc<|riii'ed  in  matteisor  this  kitid.  We  im- 
mediately jnloptcd  the  "\pcdieiii  of  di  pntiii^  a  nii'iiihei  In  It  ill iiiiore,  furnished  vvith 
all  the  authority  we  i  .mid  cont'ci-,  to  carry  the  views  of  the  rresir.enl  intoelVccl .  ( ',ip- 
tain   Kilty,  who  ai'i-epted  this  mission,  has  reiiirned.  and  reports  as  follows  : 

That  (in  his  arrival  in  Malliinoie  he  lle^an  and  for  tvvoda.vs  pnrsiied  a  dili;;eiit  iii- 
ijiiiry  respecting;  the  two  \essels  said  to  he  liltine  out  as  pri\iileers,  willioiit  receivin>; 
any  satistactor.v  account.  That  he  then  determined  to  interest  the  Itiitish  vice-consul 
(Mr.  I'.dwjird  Tliornt  iii'lin  the  search;  aceoidinely  he  opem-d  his  linsiiie.s  to  that  ;;en- 

tlenian,   who    he  helieves   used  every    endeavor  to   discover  the    privateers    lni|nestloii, 

Imt  without  elVect.  That  he  (Captain  Kilty)  then  took  an  acinal  olisei  vaiioii,  in  the 
pnlilic  hai'fre.  of  all  the  vessels  in  ilie  harlior.  and  remained  ai  Icni^ih  eonv  inced  that 
either  those  di-scriheil  hy  the  ."Secretary  of  War  were  n.it  there,  or  ili.il  llicv  wei-i-  not 
in  such  a  state  of  preparation  tor  criiisinuj  as  to  make  il  pos..iliie  to  diseover  tlnir  in- 
t(  ittidii.  That  he  had,  liowev  er,  ohserv  ed  at  a  wharf  on  I'eH's  I'oini  a  schooner  inonni  - 
inn  twelve  ^niis.  .\lt hoii^jh  this  sessid,  as  well  from  her  si/e  as  her  havinii  come  in 
with  the   lleet    frniii   San   |)   niin;;o,  cmild  not  In   I  he  Viri'inia  pilot  lioal  iiieiiiioned  in 

the  Secretary  of  War's  letter,  yet  as  she  .si-emed  to  have  I n  niakini^somc  e!|iiiiinienlM, 

tunl  WIIH  evideiitly  intended  for  a  criilm'.  Captain  Kiily  thoiiuht  it  proper  to  make  sonin 

*  Mr.  Tb(irutoii  won  lliefutliorol' tliu  |tri'»cril(llNtinuiili«li)Ml  reiii'iMeiiiatlve  nl'  II.  It.  .M.  iit  \V'iiHliiiii,'.'>iii. 


358 


GEXEKAL    Ari'KNDIX. 


..SI 


•11 


it 


i)ii|uii'ii>s  rrHpt'ctiiiy;  Iut.  lie  diil  so,  as  far  an  wiis  cDiisiMfmit  willi  his  rcHdliitinii  not 
to  aliinn  tliiiyc  coiiciM-nfil  in  Iht,  until  \w  .should  liav<;  pr.t  hitnsflt'  in  a  t'linilitimi  tii 
Ht-i/,t^  lirt',  if  III-  mIioiiIiI  lin<l  it  m-t  fsnary.  Thi)  caul  ions  nianiii-r  in  which  thi.s  consiilcr- 
atiiin  iii)li^i>  1  him  to  procciMl  rcnilcrcil  his  intelligence  very  iiiconi|il(;t<-.  On  thewholo, 
hdwcviT,  it  a|i|ii'ai'cii  that  shu  hml  adili-il  to  her  niiniln-r  of  i^niiM  ami  niaile  .some  alter- 
ation toiler  waist  .silicic  heraiiival  with  tlu^  fleet,  lint  where  the  iwlilit  ioiial  cannon 
were  |irocureil  lie  lonhl  not  learn.  Althoii;;h  the  re:;nlations  on  this  siiliject  hail  not 
then  a|>|)eareil,  it  occiirreil  to  him  that  military  ei|ni|iiiieiits  (althiiiiu;h  |>artial  ones) 
were  nut  penniiteil  in  onr  ports,  anil  while  he  was  icnisideriii)^  whether  the  circnni- 
Htanceshe  had  discovered  would  Justify  him  in  delainin<;  the  vessel,  aed  had  returned 
to  I'eH's  I'oint  to  make  a  linal  ohservatiou  and  in(|iiiry,  he  learned  that  an  intimation  of 
hisdesiy;!!  was  on  its  way  to  her  romuiander.  Apprehending,  therel'ore,  that  s!ni  would 
(liiiw  oil'  into  the  stream,  and  make  a  visit  to  h>-r  ditticult,  if  not  impraeiiiviUle,  he  le- 
soiNi'd  to  j^et  possession  while  it  was    in  his  power,  and   aeeordiiiLjIy  desireil  Mr.  (iray- 

liill,  the  depiily  marslnil,  lo  i t  liini  al  an  appointed  hour  with  a  few  gentlemen  wlio 

cunld  III'  coiiiiiled  in.  i'liis  iieiiifr  done  Captain  Kilty  went  on  hoard  and  inipiirei'i  for 
the  captain  and  other  oDiccrs,  hut  none  of  them  were  there,  lie  then  j;ave  the  vessel 
in  charge  to  .Mr.  (iiii\  Will,  desii  in;i  him  to  do  whiitever  was  nee(>ssary  to  disahle  her 
tlom  lliovill);  olf.  lie  then  ini|illl'etl  without  reserve  respecting;  the  ei|uipmeMls  she 
li.'iit  made  ill  llaltiniore,  Imt  cmild  not  h-arn  that  Khe  had  procured  ;runs  or  done  any- 
tliinn  that  was  essential  to  herns  a  privalei'r.  That  having;  leU  the  ve-<sel,  he  was 
iihont  to  return  to  the  town  for  the  |iin  pose  of  lindiii;;  the  ciipiain.  w  ho  was  said  to  he 
there,  lint  wtis  surprised  with  the  appearance  of  a  considcr.ihle  hody  of  Ficnchmen, 
with  a  Iciidcr  and  a  drum  at  their  head,  marciiin^  hastily  ioward  tln^  sidiooner  ;  that 
ltciii)r  iicrMiiaded  they  intended  to  retake  her,  he  ojiposed  tlii'ir  pro<;i'css,  and  some  cir- 
riiiiistaiices  of  tuiiiiilt  ensued,  wliii'h  at  length  suiisided  hy  these  people  protesting 
their  i;;iioraiice  of  her  h;ivin;;  heen  ta'ieti  h.\  aiithmily. 

Tliiil  the  next  nioriiin^Captain  Kilty  icceiM-da  visit  from  the  captain, .lean  Itaptiste 
(';irvin,  who  is  likew  ise  owner  of  the  schoonci,  and  who  wi;|i  irieat  temper  iisked  the 
i°i  :tsons  of  his  vessel  liav  iiiij  hccii  sci/ed.  That,  on  lieiii;;'  iiifoiniid  that  the  principal 
),:riiund  of  tin-  measure  was  hi>.  Inn  iiii;  etiliii>;i'd  his  nninherof  ^itns,  lie  produced  papers 
si;;iicil  liy  the  iiropcr  oiliceisiii  .San  l>omin;{o.  hy  which  it  appemed  that  his  vi-ssel, 
lall'd  the  "  I  lid  list  ry."  has  cairied  ;;iins  tlie«e  tint  e  years  past,  ami  that  on  the  I  It  li  ol 
April  l.'ist  slm  iiioiinted  sixteen,  and  ha<l  a  crew  siilHeient  tor  privateering.  Hi-  pro- 
duced llkewi.se  a  ('omiiii>siou  or  license  for  eruisiii;<;,  Ity  which,  as  he  explained  it.  thu 
pii/.es  went  to  the  pivernineiit,  and  the  captors  received  a  reiusonahh-  ;;ratitieation. 
After  exhihitiii;:  these  pa)iers,  he  a.ssei'ted  thai  he  li;id  procured  no  ^iiiis,  Ol'  aiiylhiii^; 
III'  a  military  iialurc,  e\ci-pt  a  few  spare  lammeis  in  ItiiitiiiKue,  hui  thai  the  ;riins  he 
iippeared  to  haveiiionnleil  siiici' his  .-triival  were  liroii<^lii  in  his  Indd.  lli- acknowl- 
ed;;eil  the  purchase  id  some  cordage  and  the  cleaning;  the  hottoin  of  the  Vessel,  with 
oilier  things  of  an  inditlcrcnt  naturi-,  and  concluded  with  dem.indin^  it'  I  he  ariiieil  ves- 
sels III  general  in  the  harhor  were  not  eipiall\'  liald<'  to  detention  with  his. 

That,  without  ihinkliit;  liimself  oiili;;ed  in  ;iive  entire  credit  to  all  these  declarations, 
Clplain  Klilx  still  I'oiinil  it  llii|ios.<il(ie  lodiiproxc  aii>' ot'  I  iieiii,  :ind.  I  herefoic,  liclll;^ 
salislicd  llial  no  repreM'iit.it  ion  he  should  In-  ahle  to  make  would  induce  or  aiilhori/.e 
the  Pcdeial  Kxcciit  i\  e  to  continue  the  I'estrielioM  he  had  laid  on  the  vcsm-I,  hut  that, 
on  the  eontiais,  heavy  diima);es  would  he  incurred  hy  the  pulilic  for  her  detention,  he 
Ii'solveil,  al'icr  he  should  previously  iiHiuiie  of  the  I'leiieh  vice-consul  rcspectin;; 
■  he  ail  I  he  lit  icily  of  the  doc  n  men  is  exhiliitcd  hy  the  eaplain,  to  release  ihe  vessel.  .\c- 
i'oidiii;rly,  he  waited  on  that  olllcer,  who,  with  ;;ieat  readiness,  said  iiiiich  niori^  than 
w.'is  ii'i|iiircd,  and,  this  ccicmoiiy  heiiif;  tinisheil,  Captain  Kilty  directed  Mr.  (irayhill 
to  release  the  VcMStd. 

We  have  the  lionor  to  he,  Nir,  &c., 

JAMi:s  Ul.'lCK, 

J'ltnidtHl. 


i 


ii'i 


Mr,  llitmmoiid  to  Mr,  .ftj/frmon. 

L.VNsi)o\v\,  yovnnhir  'i'i.  ]'!',y.\. 

Silt:  r  hiive  had  the  honor  of  receivlnn  your  letter  of  the  I  llli  instant,  upon  which. 
ns  it  ,'iiiiioniices  the  //.rif/ determination  of  this  (ioveriimeni  not  to  restore  the  Hritish 
hhip  Koehaiiipton,  it  is  iitiiieeessary  for  me  to  otter  niaiiV  ohservalioim,  or  to  enter  into 
II  iiiinnt)'  examination  of  the  reasoning  or  tliti  tact«  by  wliieli  thut  (lottTUiiinttioti  is 
Jnstilied. 

I  cannot,  however,  avoid  l'elllalkiu^,  that  itllhon;rh  your  position  miiy  he  wtdl  foiMid- 
(■d,  "thai  it  would  he  .'i  measure  of  inealciilaUle  i  onsc<|neiiciM  to  decide,  that  the  iti»i(i //<''<> 
I'lreiimstunccs  of  niilitaiy  eiinipmenl  to  a  vesrtel  in"  your  "ports  should  invalidate  liui 


GENERAL    APPENDIX. 


359 


oliitioii  not 
iiiiilitiiiii  to 
is  ciiiiHitliT- 

tlm  wliult), 
.siiiiii^  iiltt;!*- 
iial  (Million 
•rt  llilil  not 
irtiiti  oiii^s) 
111)  lirciim- 
ul  ri>tiiniiMl 
liiiiittion  of 

.s!ii^  woiiltl 
ill.lr,  li-  n- 
l  Mr.  (iiM.v- 
lliMiicii  who 
iii|iiir('ii  tor 
r  till'  vessel 
ilisiiUlt!  Iicr 
iiiii'iils  slm 
I'  iliiiie  aiiy- 
«si'l,  lie  was 
IS  said  lo  lie 

l''li'lli'lllllrn, 

loner  ;  dial 

III  some  eil- 

|iliilestill<{ 

■an  Itaptiste 
r  asked  the 
he  |ii'iiiei|ial 
iieeii  |ta|iei.s 
t  his  vessel, 
the  llth  ot 
J.        He    |iro- 

kineil  i(.  I  he 
ratiliralioii. 
)l'   allVtllill;; 

he  i;lins  he 
aekliovvl- 
Vessel,  with 

aniieil  ves- 

eelaiatioKS, 
lore,  lielll;; 

I'  aiithui'i/.e 
1,  hot  that, 

etelitioil,  he 
lispeet  in;. 

Vessel.      \i- 

iiiiire  than 
til.  (inivhill 


.'K'K. 

I'llxiiUlll. 


poll    wlliell, 

the  Hritisli 

o  enter  into 

iiination   is 

well  IoimhI- 

)  he  HiHdIli'it 
i.tlllllklt!   ilUl 


pri;';es  tlironfjli  all  tiiiu'H;"  it  may  also  boa  iiieasi  re  of  incalciilaltlo  iniseliief  to  fho 
jjeiieral  eoinineree  of  friendly  powerH  (exce|ttiii>j  that  ot  Fianee)  trading  with  tho 
United  States,  if  tln!  hin/ixt  eirenniMlaiu'e-^  of  niilitary  ei|iiipnient,  superadded  to  p'reiich 
]iri\:i'ii'i'rs.  ill  yoiir  ports,  providiMl  they  elude  t)ie  viy;ilaiice  of  ilie  ollieers  appointed 
to  waleh  over  proeeediiij;s  of  this  iial  ore,  shall  not  he  considered  hy  this  (ii>\  erniiieiil 
as  siillieieiit  to  invalidati-  ]iri/es  hron;r|it  into  its  ports  liy  vessels  under  this  preiliea- 
inent.  In  the  jin'seiit  ca.se  the  faets  are  that  the  si  liooner  Industry,  a-eordinv;  to  thb 
deposition  id' Heiijainin  Maker,  if  Maltiniore,  (at  whose  wharf  and  sliip-yar<l  she  lay 
dnriii<;  her  additional  etpiipnieiit,)  had  no  niori-  than  Jour  or  nix  eannon  iiioiinti'd  when 
she  was  lironjrlit  to  his  wharf;  that,  when  she  left  it,  "she  had  /n.-r  sir-poini'l'-ri,  vii/lil 
foitr-jioHiidrrH,  and  two  hoifil:irM  rompliliUj  iiionnliil ;"  and  that,  from  Mr.  Kilty's  rejiort, 
it  a|ipears  that  he  himself  was  eonvineeil  that  she  had  added  to  the  niimher  of  her 
^iiiis,  aiid  had  made  alterations  of  a  warlike  nature ;  hnt  as  he  eoiild  not  ha  in  wlu'iiee 
these  addit  ional  eannon  had  lieeii  procured,  he  diil  not  deem  himself  just  iiialde  in  re- 
fiisiiiy;  his  assent  to  the  aiilheiiticity  of  the  dociiiiunits  jn'odiiccd  liy  the  i:i[ilain  of  the 
Vessel,  or  in  di'lainiii;;  |i,.i-  any  longer. 

The  privateer  Industry  wis  therefore  allowed   to  depart   from  Halliiiiori>  nnih'r  an 
tiii);meiitat  ion  of  force  more  than  doiilde  to  that  it{'  lur  oriiihntl  (iiiiunrnmr  in  thai  port; 
and  to  which  aiiKinentatioii  I  have  ri-ason    to  helieve   that    In-r  siil)sei|iient    ca|itiiro  of 
the  shin  Roehainpton  is,  in  a  niv.xt  measure,  if  not  eiitin-ly,  to  he  imputed. 
I  have  the  honor  to  he,  with  sentiments  of  j;rcatest  respect,  Ac. 

The  ,s»*vt'iith  artiflt'  of  tlit^  tfcaty  of  \ov(iMl»«'r  1!>,  171>I,  jiftcf  iccitiiis; 
tliiil  ct'itiiiii  iiii'r<'li;iiits  ami  otlicis  of  Ilis  IWitiiiiiiic  .MiiJ»'sl>'.s  siilijcct.s 
liud  siistaiiKMl  lo.ss  and  tlaina^jc  U\  the  captnii'  ot  tln'ir  vt'ssrl.s  ami  imT- 
cljamlise,  takni  l»y  v«',s.s«'l.s  oii<,MaaIly  aniicd  in  poit.s  of  llic  I'lutiMl  StaU's, 
ayrrt'il  that  in  all  .sncli  (-as{>h  wlicit'  fcstitiition  .slionld  not  liavt*  Inu'ii 
niadr,  tilt'  roiii|>laint.s  of  the  paitii's  slioiild  he  rcfci'icd  to  <;oininissioii(>r.s, 
antl  till'  rniti'd  Stiitcs  should  iimltMtakt^  to  |iay  to  tln^  claiinants,  in 
specie,  without  drdiictioii,  the  ainomit  of  such  sinus  as  should  l)e 
awaidetl  to  them  respectively  by  the  eom!nissit)in'i'.s.  (S  Slut,  ut  l.ioujr, 
p.  IL'I.) 

The  history  of  tlie  vaiinns  steps  siilisetpu'iitly  taken  by  tln'  {loveiii- 
nient  of  the  Tnited  States,  in  its  ditVeient  In-anches,  to  !naint:iin  its 
sovei'eioiity  and  to  picvent  violations  of  thiit  soveiei;iiity  by  aoeiits  or 
repie.sentatives  of  other  powers  at  war  with  each  other,  ate  detailed  itt 
len;:lh  and  with  fairness  by  Mr.  Abbott,  in  the  ineinorainliim  already 
referred  to. 

It  is  claimed  as  a  fair  result  of  a  review  of  Imt  history:  /7^.v^  That 
(Jreat  I>iit;iin,  whij'  \  is  a  ^reat  naval  power,  with  ;i  stiouo;  onvernment, 
jios.se.sscd  of  all  the  niacliinery  reipiisite  to  enable  it  to  perforin  its 
duties,  wiis  bound  to  prevent,  at  its  own  risk,  the  :irmino^,  eqiiippiiio,  or 
<'onstruction  of  any  vessels  whereby  Wiir  could  be  carried  on  ay:aiiist 
the  I'liited  States,  upon  the  oceiin,  diiriny  t he  hostilities  between  the 
riiited  States  and  the  insnri^'ents.  Sinnnl.  Th;it  in  any  pariit^dar  case, 
failino;  of  its  diiti«>s  in  tliat  respect,  (l real  IJritaiii  was  boiiml  to  aiiest 
and  (ii'l.iin  an>  vessel  «'sca)>in^  from  its  ports,  whenever  it  shoidd  ;ip- 
pciir  within  its  jiirisdii'iioii.  Thinl.  That  (ire:it  liritaiu  wtis  luriher 
iioiind  to  instruet  its  naval  forces  in  idl  parts  (»f  the  jflolw  tu  arrest  ami 
detain  ves.s'  Is  .so  escaping-,  wheiu'ver  they  should  be  met. 

In  sup|>orL  of  this  p  opositiuu  the  following;  ca.ses  and  authorities  are 
cited  : 

1.  Ucftrence  is  uiatl  •  t(»  the  correspondence  during;  (leiu'ntl  NN'ashino;- 
ton's  atlministration,  above  quoted,  ami  to  the  treaty  of  17!>4,  already 
cited. 

'J.  To  the  speech  of  INIr.  Canninii,  in  IH'J.'J,  in  I'arliiiment,  (pioted  in 
I'hUlimiiii's  Intcnuilional  Liiu\  /•»//..'{,  /;.  217,  a**  folhiws: 

If   I  wished  (Mr.  ('aniiiiijj  said)  for  a  jjiiidc  in  a  system  of   neutrality,  I  shooM  takm 
that  laiil  down  hy  Ainerici  in  the  days  of  the  ]iresidc-iicy  id' Washintjfon  and  the  H«'en' 
taryship  of  ,1  MVerson.     In  IT'.Kt  coinplaiiits  uere  made  to  the  .\iiiericaii  tioxeniiiieiit 
tinit  Fieiicli  niiipN  w(*ru  iidowed  to  lit  out  iind  arm  in  Aiiiericun   purtH,  for  the   piirpimu 


360 


GENERAL    APPENDIX. 


'r. 


f-»fi 


P 


|ii 


li 


»t! 


of  attacking  Itiitisli  vcnsoIn,  in  direct  oitpiisiMon  to  tlio  laws  of  iieiitrality.  Iiiiiin-ili- 
atcly  iii>oii  tiiis  ri>|ii'fK(;iitiitioii  tin-  Aiiuriican  (iiiverniiicnt  liehl  that  hii(;]i  a  littiii;;  out 
was  I'oiitrary  to  tlic  laws  of  Dcntrality,  an*l  onlt-rs  wcio  Issiiim!  proliihitiii);  tin*  aiming; 
of  any  Fifiich  vcsncls  in  Ainciiian  poits.  At  Ni-w  York  a  Fri-nch  vcsHfl  litliny;  out 
was  scizitl,  (IfliviTiMl  over  to  tin-  tiiWunals,  and  conilt  inut'd.  Upon  that  oiTasiou  the 
Auu-ri<-an  (iovfi-nniint  held  that  sikIi  fitting  out  of  I'lrnch  Nhi)is  in  AnuTicau  ports, 
for  tin-  purpose  of  cruisinf;  af;ainst  Kn;;lish  vtsscds,  was  imtonipatible  with  tlie  sovi'r- 
fiffiily  of  th»!  Ignited  Stiitfs,  and  tended  to  inferrui»t  the  peaeo  and  good  underslautl- 
iii^  wliieli  suhsisled  between  that  country  and  (ireat  Itrilain. 

Here,   sir,  [he  added,]  1  contend  is  the  jtrinciple  upon  which  wu  ought  to  uct. 

'{.  During  tliecivil  war  laging  in  Portugal,  in  1S27, 1.S2.S,  1S2J),  four  vos- 
s«'ls  left  Plymoutli  ostensibly  for  IJra/.il,  with  six  Inuulred  anil  lil'ty-two 
otti(;erH  and  men.  The  liritish  government  of  tluit  day,  believing  that 
it  was  destined  for  I'ortngal,  dis|»at(!hed  a  Heet  to  Tereeira,  (wiiich,  it 
may  be  »)bserved,  was  the  plaee  to  whieh  the  Alabama  first  w«'nt  after 
her  (h'i»artiue  from  England,)  with  orders,  if  the  expedition  appeared, 
to  give  them  warning  against  hovering  aooiit  or  making  any  etVort  to 
elfeet  a  landing;  and,  in  case  of  their  persistence  against  the  warning, 
to  drive  them  away  from  that  neighborhood,  and  to  keep  sight  of  tliem 
until  convin(!e«l  that  they  had  no  intention  of  returning  to  tlie  Western 
islands  or  proceeding  to  Maderia.  It  became  necessary  in  carrying  out 
these  onlers  to  lire  up(>n  the  expeditieu.  One  man  was  killetl,  some 
were  wountled,  and  the  expedition  was  broken  up.  This  a«'t  gav«'  rise 
to  an  extende«l  debate  in  I'arlianu'iit,  and  the  condui-t  of  the  goverii- 
iuent  was  appr(>ved.  {J/a)i.s<inl,  rols.  L*.{  <  tui  24  N.  tS.  Annual  li'qiister 
JliHto)}/,  dr.,  A.  />.  ISLM),  ml.  7L', />.  187,  «7  m/.) 

4.  .^Ir.  IMiillimore  says:  "The  courts  of  the  North  American  Unite<l 
States  have«lecided  that  foreign  ships  which  have  offemled  against  the 
laws  <»f  the  I'nited  Statt's,  within  theirjuiii-tliction,  nmy  be  piiisiu'd  and 
sei/i'd  upon  the  ocean,  ami  rightfully  brought  into  the  ports  of  the  United 
Siales  for  adJiuli<*atiou."  (  Vol.  Ill,  p.  li'J8,  lio-sc  vs.  Jliniileii,  4  ('ranch, 
L'.S7;  Ihnhoii  rs.  iiutsi'nr,  Cr.  (I,  284.) 

Much  more  evident  is  this  right  of  capture  at  sea,  when  the  olVenso 
is  one  against  not  merely  municipal  but  interiuitiomd  law. 

.">.  Sir  llobert  Collier,  on  the  L'.id  of  .luly,  1801,',  on  certain  allidavifs 
submitted  to  him,  gave  his  opinion  in  regard  to  the  Alabama,  that  it 
was  dillicidt  Ut  make  out  a  stronger  case  of  infringement  of  the  foicign- 
eiilistnu'iit  act,  wliich,  if  not  enforced  on  that  occasion,  was  little  better 
than  a  dead  letter;  and  that  it  wt'll  desj'rved  consi«ler»li(»n  whether,  if 
the  v«'sscl  were  allowed  to  <scape,  the  Federal  (lovernmeiit  w«udd  n«tt 
have  a  serious  ground  «tf  r«'m(Uistnin(e.     |.^>  i'laims,  )>.  L'M.) 

This  opinion  was  communicated  ollicially  to  Karl  Kussell  by  Mr  Ad- 
ams, .Iidy  L'4,  18(»2,  (.'  Claims,  /».  L'(l,)  and  Sir  IJolu-rt  ('t»llier  was,  on  tlie 
L'd  <lav  of  Octidter,  iso:^.  appointed  sollcitor-g«>iM'i-al  in  tbf  same  admin- 
istiation,  In  the  jtlacc  i>t  Sir  K'oumlcl  I'alint'r,  ma<h'  attorney  yt-neral. 

(1.  ( )n  the  1st  ((I  Ai:  .  st,  ls70,thr  n»'W  tbr«'ign  cidi^v  iiM'iit  bill  H  a^  dis- 
cussed in  »iu'  lloHM'iii  I'oiiniMUis.  In  the  cours«M)f  <lel>ate  'Sh^  attoiuey- 
geiieral  said  tha!  -the  h(»iior  and  dignity  ofthi-rrown  an  ^-'inpromised 
when  the  subjects  of  th«'  (^Mn-tn  take  pait  in  liostilities  a^^mtist  an  iilly." 

Mr.  Vernon  llarcourt  saidthat  "iMMUiewoidcl  diffei  tnwu  Lord  Kus-ieU's 
dictum,  that  the  cas<'  ^d  ?tM-  Alaltama  wa^  a  srandal  to  the  I:mvs  i>i  that 
coiintrN ,  and  that  fliosr  roncerned  im  tlwi-i  disastrous  Iiautl  <"  iiiiNirted 
tine  ol  the  most  nnpatnotic  a<'ts  of  whi<'h  an  Knglisl'man  h.Hi  ev^i  Imh'H 
guilts."  And  Mr  IJoundt'l  Talm*  said  tls  •<  ** //  tow  ih<  ihifti  n/ the  .'<latr 
to  nincs.H  anu  atfi  mut  on  tiw  ttatt  »/   the  i-      alt  >  i  lit  ottiin.sf  thv  itnhiiv 


<V 


will  to  hi    hriitntl. 


iftt 

[ 


i- 


Sff  Foniiitt.  Ar/«."//<»*v,  \s'( 


Oft/f 


On  the  .'id  of  Augii»l  Mr.  \'crtu«a  liawourl  ^«~«•u^  in  it,  s^uW'4ueut  do- 


GENERAL    APPENDIX. 


3G1 


I 


•.  Iiimii'ili- 
i  littiii);  Kilt 

till-  ikiiniii;; 

litlih^  out 
(■caNiiiii  tilt- 
j'ir-ikii  itoi'tH, 

I     tln'  HOVlT- 

iiniliTHtaud- 

0  nv.t. 

\  four  vos- 

1  lillytwo 
'viiijj  tlisit 
(which,  it 
vt'iit  aCttT 
iippcinvd, 
V  ftVoit  to 

waniiii};, 
t  of  tlu'iii 
*  NVt'stt'iii 
i-rviii},'  out 
IUmI,  some 

{•avc  ris'j' 

l«    yovt'l'li- 

l  lii'iji titer 

II)  Unitctl 
gainst  the 
I'sikmI  and 
he  United 
4  Crunch, 

he  oUeiisu 

allidavits 
a,  that  it 
e  l(»iei};ii- 
th'  better 
iielher,  if 
oiiid  not 


I.' 


:Mr   Ad 

s,  on  tl.e 
le  admin 
•Mieial. 
1  ua^dis- 
it  lot  ties  - 
noiiiised 
nil  ;ill\." 

UMtsH'irs 

s  ul    YllHt 

iMiHiMed 
\  ;'r  bneu 
'  thi  stair 


bate  on  the  same  hill,  tlwit  "  the  policy  of  Washiiisfon  in  170.'?  was  the 
fonihlatioii  of  tlie  whole  of  the  modem  practice  on  the  isnhject  of  neu- 
trality."    {llaiistirfl,  .W  serieK,  ml.  !,'(>;{,  p.  1'}{)1.) 

7.  Thecaseofthe  *' International"  and  hercar;;(»,adiinlicated  in  the  court 
of  admiralty,  .lannary  17,  J.S71,  before  Sir  Robert  I'hillimore,  arose  under 
the  "w  forei;,fn-eidistment  act.  lu  renderin};;  tho  decision  thu  distin- 
jjnished  Jurist  said : 

'I'liis  Htiif  iit(>,  ]ia,MSf(l  iliiriiiir  tli»>  hxnt  sr'ssioii,  Muilcr  wliich  tlio  aiithi)rif.\  of  tliis  court 
is  now  tor  tlit-  lirst  f  iiiu-  rvokfil,  is,  in  my  jii<l;riiiciit,  very  inipoitanl,  aiiil  vny  valniililc; 
strcnfftlifiiinj;  tiic  lianils  ot  Ht-r  Maji-sty's  jjovri'iinirm.  ami  rinthliini  Ihim  In  /idjill  inorr 
fHHiUi  lluiH  hvnlot'itrv  thai  fiitvlicHlur  rlasmij'  hiltriintioiKil  iihliiiulioiin  irhicli  miiij  urii^c  mil  of 
the  i-dikIikI  (if  livr  MujiHtijH  siiIiJitIh  toward  tHttt'unvtnt  fon'tijn  HlaUn,  irilli  iiiunii  llir  M<ij- 
culy  in  at  jiiacf. 

The  London  Times  of  January  18,  1871,  commenting  upon  t!ie  decision, 
says : 

Tlio  war  lictwcon  France  and  frcrmany  broke  out  toward  tlio  ond  of  tlie  last  Hi'ssion, 
and  it  was  then  rt'iin'iiiltt'ivd  at  tin-  l'ol•^■i^  i  oUjce  tiiat  our  forviijii-viilisiiiiiiit  uit  inm  iin- 
jiiifrvl,  and  that  a  royal  conr  lisHion  Itad  rt>coinni<'nd)-d  its  aiiiindiiiiiit  in  si-viral 
ItarticiilarH.  A  l>ill  was  accordingly  intiodiiccd  in  liot  liastc  and  V.iirritid  tliroiigli  Par- 
liament. 

And  the  Satiir«lay  lieview  of  the  21st  of  Janimry,  1S71,  says: 

Tlif  Amirh'aiiH  Jiarc  turn,  lliroiifili  tin' wlmlr  roiiri'r  of  tliv  .iliiliiimn  voiilronrsii.  fuUij 
jiiHliJitd  ill  niiiiiitaiiiiiifi  tliiit  difrrtirc  li'ifinliilioii  iroiilil  in  :io  <■««<■  esvinpt  a  luiitrnl  hIhIi  from 
tlir  oliliijiilioiiH  iiiiiiiiKvd  till  iiilii iiiilioiiiil  loir.  'I'liey  were  mistaken  in  sii|>)iositi;r  ili:it  tlu! 
IjikHsIi  ^roveriinient  relied  on  tlh'  nnsoiind  ar};uiiieiit  orinaltility  todlNeliar^e  its  duties, 
altlioii({li  Iior<l  ItiisNclI  on  several  oeeasions  showed  that  the  Kiijjlish  law  was  inoro 
strin;;eitt  than  that  ot"  the  I'nited  States.  //'  In  hail  conli mini  Iha'  I'arlinmiiit  hml  not 
iirinrd  Ihr  Crown  irilh  milJiriinl  poirrri,  Mr.  .{iloiiis  or  his  sinriHuirH  miijht  hori  roin  Insin  ly 
nhoirn  that  forcif/n  Htatix  hail  notliiiuj  to  ilo  irith  tlir  inUrnational  lii/ixlalKni  of  luiiihinil. 

8.  l-'ven  Lord  Hns.sell  is  disposed  to  admit  that  there  was  a  neoiji^ciM^e 
in  tlie  (*aHe  of  the  Alabama  that  entailed  a  liability  for  her  act : 

A\hal  I  shcMild  cxteeni  a  reasonahle  answer  is  one  sn^;>;ested  hy  Mr.  I'orsler,  the 
vice  president  oi  llie  eoiniiiittee  of  eoiineil  on  ediieat ion.  1  iindeistand  hini  lo  say  llntt 
neither  the  secretary  of  stute  tor  foieijrn  allaiis  nor  the  law-olliceis  were  in  fault,  Init 
theolhi'ial  peisoiis  en!|ilo.\ 'ij  at  I.,iver|iool  were  wantinjj;  in  due  ilili).jence,  and  that  thi.s 
eonnlry  iniKlit.  in  re|tiirali'ih  of  that  neglect,  ^raiit  eonipeiisation  lor  the  losses  jneiiried 
li.\  nierrhanls  III  conNeiiiieiice  of  eaptiiies  made  hy  the  Aluhaiim.  It  appeareil  to  me 
tha! ;,  if  the  ollleeis  tif  ihe  i  Us  toll's  Well'  misled  i>r  lilinded  liy  the  j;eiieial  paitialily  to  I  ho 
cMUse  of  I  he  Sinitl'  known  to  pr''\  .ill  at  \a\i  t\f«>\.  and  that  a  iirinui  fm  ii  case  of  ney;li- 
^i-nee  conld  lie  n.  iiii>  oiii  <ire:it  liritain  iiii^ht  fiiirly  ^raiit  a  sum  ei|ni\aleiit  to  tli" 
anieiiiit  .it  UiHses  siistaiiM  <t  hy  the  captiu'L'S  of  the  AiiibiiniH.  {Siitichi:n  and  l)iiipatilun  of 
iMit  liitmitU,  vol,  % ij).  4->\*,  ^(iO. 


Mcnt  do- 


VII-riAfMS  OF  HHITISH  SMUFXTS  AGAINST  THE  UNITKD 
STATKS  FOR  LOSSKS  AND  IN.fl  KIES  "AIIISIN(i  OUT  OF  ACTS 
COMMITTFD  DLUING  TlIF  RECENT  CIVIL  WAR  IN  THE  LNFrEI) 
STATES." 


UifL' 


Tlipso  must  bo  oxamiiu'd  upon  priiutiplca  nppli(5iibl«»  to  public  w.w. 
TIh»  IJiitisli  <;()vt'riiinoiit  has  n'co^jfiiizi'il  the  coiillict  as  wajjetl  by  one 
actual  ^^ovcnmuMit  aj^'aiiist  aiiotlior.  Tli«  SiipriMuc  (Joint  of  ihc  I'liitt'd 
States,  ill  Maiiraii  I's.  liisuniiicw  dunpaiiy,  says: 

Till' ('"iisfifiitidii  of  llm  Iliiitfd  StiitfH,  wliicli  is  tlin  fiiinljiiiKMital  law  <»f  ouch  iiiiil 
nil  of  lIuMii,  not  only  all'onlfii  no  coiintoiiiincti  or  authority  for  Mioso  proi-tiiliiijLrs, 
[lliosc  of  t\u\  ri'lii^ls,]  liiit  they  wia'r,  in  ovrry  part  of  them,  in  oxpn^Hs  iliHrr^ai'il  ami 
violation  of  it,  Still  it  (lannot  ho  *l<tnii><l  that  by  tint  us*;  of  thi-s«<  nnlawfnl  and  uncon- 
Htitiitional  means  a  ^ovfrnnimt,  in  fact,  was  ('rfcti'il  ;;n'ator  in  territory  tlian  many  of 
the  ohl  ;;nv('riimctits  in  Kuropo,  complr^r  in  tlio  or;;ani/.ation  of  all  its  parts,  contain- 
ing within  its  limits  more  than  ekven  millions  of  people,  and  of  snlhcient  resonrces 
in  men  an<l  monev'  to  carry  on  a  civil  war  of  nni'xampled  dimensions;  and  dnriii;;  all 
wliii  h  lime  the  exeicise  of  many  hellip'reiit  ri;{hts  were  i  ilher  eonecMlt-d  tr»  it  or  were 
nc(|nii'sced  in  l)y  the  unpreine  f^overnmeiit :  sncji  us  the  treatment  of  captives,  huth  on 
land  and  sea,  as  )>iisoners  of  war ;  the  exchan^iof  prisomns;  their  vt-ssels  caplnred 
rccti;r|ii/,Ml  as  pri/.es  of  >var  and  dealt  with  ai'cordin;rly  ;  their  property  sel/.ed  on  land 
referred  to  the  judicial  trihnnals  for  ad.imlieation  ;  their  ]>orts  l)Io(-ka<led,  and  the 
blockade  maintained  by  a  snitahle  forci^  and  <lnly  uutilied  to  neutral  powers,  thu  same 
us  in  opiMi  and  public  war.     (i!  lyitllani,  paije  14.) 


1.— INJIRIKS 


IM'I.ICTKIJ    HV     liVAW.L    AlTllOUITIKS    OK 

1{i:i»i:ls. 


BY    PRIVATE 


Tjord  Stanley,  aCtorwanl  Earl  Derby  and  inime  minister  of  England, 
in  a  debate  on  the  all'airs  of  Greece,  June  17,  ISoO,  said : 

I  do  not  nndersland  that  where,  by  no  fault  of  n  government,  oll'enses  are  committed 
niiainst  foreigners,  the  jiovernmeni  is  bitnnd  to  indemnify  tlniH(>  foreiy;ners.  The  K''^- 
crnmenl  is  lionud  to  alford  its  protection  to  foreijjners  and  to  its  own  subjects  alike, 
bill  Hrili^h  siiltjects  before  now  have  been  pilhiged  in  the  Roman  states  and  the  Neapol- 
itan states,  and  1  ii.  ter  heard  of  any  demand  against  the  gMVurnmcnt  of  uither  of 
those  states.     ( llanHitrd,  !W  mrivii,  foliinu'  I!  1,  ptujc  I'Mh'u) 

In  fill  tiler  support  of  the  j^eneral  proposition  that  no  {j<'vernnient  is 
responsible  for  iiijiries  done  to  the  iiihaliitaiits  of  the  country,  wiiether 
eiti/.t'iis  or  foreigners,  by  rebels  or  hy  ali«'ii  enemies  exercisiiief  In  the 
l)articii!:ir  h<-'ility  or  for  ilie  time  beinj;  superior  force  against  such  ;>()\ - 
ernineiits.  see  lititln'ilbrd's  Institutes,  p.  50!);  Vattel,  book  li,  eh.  <»,  .see. 

7'5;  IMiilliinores  iiiiern;»tioiial  Law,  vol.  1,  see.  -18;  Calvo  Dere- 

cho  Intt  rnational,  toiii.  1,  p.  .'{.ST. 

When  there  was  a  revolt  at  licyhorn,  the  town  was  taken  l»y  storm  by  an  Austrian 
corps,  iietiim  iis  auxiliailes  of  the  (ir.ind  Duke  of  'I'liscany.  Aft«'r  the  town  had  been 
t.tken,  and  \n  hen  resislam^e  was  over,  s<»iiie  of  these  Austrian  troops  plundered  the 
hoiisrs  of  certain  Ibitish  siilijeels.  Auio.ig  others,  the  hoiisi'  of  a  Mr.  Hall  was  forcUdy 
onlered  liy  a  detachmeiil,  lieaded  by  an  olheur,  which  remained  in  the  house  f  )r 
Bevi-ial  hours,  broiijrht  inio  the  lnuis«>  the  wives  of  the  soldiers,  broke  opeii  and  plun- 
dered everylhinjj  I'niiii  the  eellur  to  the  (garret,  ih-stroyed  what  they  'lid  not  take 
ii\>.iy,  cat  lied  away  many  of  tl.  thiiifrs  in  thf  house,  selling  them  to  people  at  the 
Miile,  which  was  not  far  ot}'.  and  reluiiiiiijj;  .afterwaril  to  take  a«ay  other  cargoes. 
This  \\,is  duiK  at  lln'  hoii-»—  of  Mr.  Hail,  of  a  wi(h)w  lady,  and  of  other  persons;  each 
ol  those  liDUSi'-.  having.  :i»  a  matter  of  precaution,  beiui  marked  visibly  <>u  'he  <)iitsiih> 
door  as  the  ii'sidenc'-s  ol  Ibitish  snbji'cis,  under  tint  protection  of  the  Hritish  consiil. 
It  was  foi  these  lof^eH  that,  upon  legal  udviuu,  cumponsaliuu  hail  been  demunded. 
(llttHnind,  'Ad  utritH,  ml.  IIIJ, ^».  (iH.').) 


UNITKD 

OF  ACTS 

lMTi:i) 


»l)Iic  war. 
I'll  l).v  one 
Uo  UniUnl 

if  (liicli  niul 
Itroct't'iliii^s, 
htr<^>;iir<l  uikI 

iiinl  iitu'iMi- 
liiiii  niiiiiy  ot' 

tH,  fiiiiiaiii- 
iit  rusoiici'i's 
I  iliii'iii;;  all 
o  it  or  wmn 
vtvs,  hotli  oil 
■Is  captiU'iMl 
i/i'<i  on  latiil 

ll-ll,  illlll  tlio 

iFH,  the  tHUlW 


PKIVATt: 


Eri^IiUUl, 


committed 
'I'lit*  (;ov- 
l)ji'('ts  alikf, 
till'  Nfiijiol- 
uf  either  of 


rniiKMit  is 
wlu'tlicr 
\iX  ill  tlu; 
siicli  {i'OV- 
'll.  ({,  soc. 
Ivo  J)i're- 


III  AuHtriiin 

II    Illlll    lllM'Il 

iiili'ii'd  till' 

Nils  loicililv 

'loiHc  t'cir 

.iii:l    plmi- 

I    not   tiiki' 

<0|>ll^  lit   till' 

rr  I'iirjfoi'N. 
•Hoiix ;  i-acli 

•111'   Mlltsilll' 

ish    riilisill. 
llclllUlltil'tl. 


.  -,,, 


GENERAL    APPENDIX. 


3G3 


With  ivft'ioiicc  to  tliis  ufluir  a  corrospoinhMKni  ensued,  \vlii(!li  is  (Mted 
ill  detail  in  a  note  t<'  (j(iillauinin\s  edition  of  V'attei,  ISti,),  vol.  'J,  p.  V,K 
It  is  believed  that  Jiis  eorrespondence  has  never  appeared  in  IOny:land. 
Tile  copy  herewith  snhmitted  was  translated  from  a  Spaiiisli  Ainei  ican 
puhlieation.     {Torres  Caicedo  Union — Latino,  Americana,  pp.  Mil,  348.) 


[AuHtriun  diHimtch.] 

Tlif  I'rhicr  of  Srhiriirhenhrrf)  to  Huron  Ifoltvr,  London,  on  Ihr  (h'nutnd  for  inihniiiilication 
uiiirh  the  ijornrnmcnl  of  Emjland  makcn  of  Ihv  ijovirnnivntH  of  Tn.iatny  and  .Suiilvx. 

ViKNNA,  .ii>rU  H,  H.-,0. 

Wi'  liave  hi'cii  infoi'iiifil  witli  ri'l'iTciico  to  tlicili'iiianil  for  imli'iiinHiration  wliirli  Enj^- 
lunil  iiiiiki'H  ii;^aiiist  Tn.iraiiy  for  tin-  alli-yi'il  ilaiiiaui'.s  wliicli  ImijjIi.hIi  Niilijiits  hail 
Hiitl'i'i'i'il  ill  Lr^iiorii,  ill  coiisiMiui'iii'i'  of  the  siipiirrs.sioii  of  the  ii'volt  whirh  look  i»lai'0 
ill  that  city  in  May  of  IHl'.l.  Surh  ii  '•hiim,  from  all  points  of  view,  i.s  w(  rthy  the  at- 
tention of  tint  imperial  ^rovernnieiit.  In  fart,  the  injuries  whieh  ^ave  rooiii  for  this 
i^laiiii  are  attrihiiieil  to  the  troops  of  His  Miijesty  the  l^mperor,  whirh  ai-teil  as  the 
allies  of  the  le<;itiniale  movi ■rei'jii  of 'I'liscaiiy.  On  the  other  hainl,  iinlrpenilently  of 
tills  eiriMiinstanec,  it  was  natnral  that  Austria,  iiniteil  to 'I'liseanv  l>y  so  many  elose 
ties,  anil  hy  aneieiit  anil  mmlerii  treaties,  nIioiiIiI  lenil,  ami  lemls,  a  itartiinlar  interest 
to  wiiatever  refers  to  that  eoiintry.  Finally,  ami  it  is  the  point  of  most  importanee,  the 
English  pretensions  teml  to  raise  a  i|iiestioii  of  primiple,  the  sulntion  ot'  .vhieh  is  of 
the  hi;;liest  iiiipoi  tame  for  the  inilepemU'iice  ami  sei^iirity  of  all  tliu  Htiites  wliii-h  main- 
tain tiieiiilly  relations  with  (iermaiiy. 

The  ori;iiii  of  the  elaim  ;;oes  haek  to  tlie  perioil  in  whieh  the  eity  of  Eeirhitrn  was  in 
full  insiirreelioii  a>;ainst  the  le;;itimate  i^overnment.  The  Ansiriaii  tiiio]is  ealleil  to 
re-estal>lisli  the  anihority  of  the  laws  were  reeeiveil  at  the  eannon's  mouth  ;  ami  hrin;{ 
upon  them  eoiitiiiiied  Iroiii  the  wimlows  until  theiily  was  eaptiiieil. 

Our  soliliers  foiiml  themselves  olili;ieil  to  enter  hy  foree  into  waiehoiises  ami  ilwell- 
iiiffs  in  onler  to  ascertain  if  armeil  men  ami  munitions  of  war  were  not  therein  eon- 
eealeil.  If,  on  such  an  oeeasion,  ami  in  spite  of  the  ilforts  of  our  olHeers  to  priM-nt 
ilisoi'iler,  there  was  siieh  ilisonler;  ami  if  some  artieles  helon;;in;;  to  Entflishnieu  were 
ahslraeteil  or  ilestroyeil  hyour  soliliers,  irritated  i)y  the  (inht  ami  l»y  a  Mind  and  tena- 
cious resistanee,  is  there  eanse  for  siirprixe  f  On;;ht  not  that  misfortune  to  he  eouiiled 
anion^  the  fatal  and  inevitalile  eonsei|ueni'es  of  war  ! 

It  is  under  this  point  of  view,  sustained  iiesides  hy  the  prineiples  of  rij^ht  ;jeiierally 
reeo;;ni/,eil,  that  the  ijioveriiinent  of  the  (iranil  i)nke  hi;.s  dei  tared  that  he  i-  in  it  ohli^reil 
to  eonrede  indemnilieatioil  to  those  of  lii.s  siilijeels  u  ho  have  sntfered  lossis  in  loiise- 
•  inenee  of  the  stormiiii;  of  the  eity  of  l,e;jhorn,  when  it  was  oldiu;id  to  surrender,  after 
ha\'in^;  refiiKed  jill  eoneiliatory  propositions. 

In  ii)nM'i|iienee,  the  government  of  the  (■rand  Ihike  of  TuseaiiN  liikH  ohjeited  to  treat 
the  Imij^IIsIi  niore  I'avoraldy  than  his  own  siiliji'cls.  He  has  not  tlioni^lii  it  to  lie  a 
duty  to  pliiee  the  En<;lish  .sulijeets  in  a  mole  ad\  aiitai;eous  pii>,itii>ii,  lis  p.iyinnlhein 
in  eliaraeter  of  indemnity  sums  whieh  are  not  paid  to  Tiisean  snlijeets ;  the  more  so,  iii- 
aKiniieli  as  if  the  foreiirners  had  idaeed  their  persons  and  inojici'iy  in  seennty,  they 
would  have  hi.eii  ahle  to  eseape  with  ease  the  general  niisfoi  tiiiirs  to  whieh  the  inliuh- 
itantsofa  hesie^ed  eity  must  Hiihmit  Iheniselves. 

These  reations,  whieh  the  'i'lisean  ;roveriiment  has  opposed  to  the  demands  of  IjoI'iI 
I'aliiiei'stoii,  apjiear  to  uh  I'oiinded  upon  prineiples  so  lii^h  and  so  iim|Uestioinilde,  that 
with  regret  we  have  seen  his  exeelleiicy  persist  in  sueli  preteiisioiiH,  notwitliHtandintj 
the  Weight  of  those  reiisons. 

So  far  from  desist iiij;;,  the  English  emhasfador  reeeive.s  orders  to  jtersist  eiieruetie- 
ally,aiid  to  eaiise  to  he  understood  that  if  the  elaims  were  im  iidmiited  liy  the  TiiHiaii 
jfovernmenf,  Enj;laiid  would  bo  luulcr  the  necessity  of  enfonin^  thuni  by  adoptiiiy  er- 
er);etie  means. 

My  ad\  iie  of  the  EiikHsIi  eiiihassador  in  Florence,  Tuscany  proposed  to  submit  the 
nialter  to  the  arbitrament  of  ii  third  jiower.  Fven  though  a  mode  of  proeediire  had 
\>een  adopted  in  this  i|uestion  wliieb  would  have  permitted  a  paeilic  solution,  we  ean- 
not  coiieeal  that,  in  the  presenee  of  other  analonous  acts  more  recent  and  y;em'rally 
known,  the  citejrorical  lan^iiUKe  of  the  English  cabinet  drmrriH  toallnut  lln  ultttilion  of 
ihoHf  nliiliH  whirh  hitvi-  him  in  thv  huhil  of  ijwinij  ii  hotpilahli'  fiir/ilion  In  Eni/lish  xnhjrch. 

However  dixjioscd  the  ririli^rd  iwojdf  of  Enropc  mnij  /«•  lo  vsimnd  Ihr  limilx  of  thr  ri(jhl  of 
hoMfntnlilii,  thiy  will  nrrrr  do  ho  lo  Ihr  rrlrnt  of  orrording  lo  forriijnrr^  o  nuirr  faroruhic 
IrrohnrnI  Ihun  Ihul  whirh  Ihr  lawn  of  Ihr  ronnlrij  iinsnrr  lo  nnlirrs.     To  place  in  I'loubl  tlUH 


■■■1 


i 


3G4 


OKNERAL   APPKNDIX. 


jMinriplc  of  ))ulilic  rijjht,  wliicli  we  arc  rcsolvt-il  to  maintain  linn  and  nnclian}jfal>lt<, 
ami  to  claim  tor  Kiit^liHl'ini'ii  rHtalilisliol  in  a  lorri^rn  connti'.v  an  r\r(>|)tional  position, 
wonid  III-  to  foicc.  so  to  say,  tlio  otln  r  Htati's  to  placn  tlit-msclvcs  on  jjnani  against  lln^ 
••oii.sc(inrnct<8  of  a  pifti'iisioii  ho  contraiy  to  their  imlfpcnfltMuc,  ln-t.-ansf  tlu-y  wonlil 
im|>om>,  even  i»y  lurt'o,  other  conditions  upon  the  Enylisii  HultJi-ctH  wlioiu  they  constmt 
to  riM't'ivc. 

We  wonid  certainly  lie  tli'*  tlrst  to  adopt  tliat  necessary  measnre,  wliicli,  it  is  noces- 
Hary  to  conlcHs,  wonid  form  a  notalile  contrast  to  tiie  tendency  of  onr  (^[hicIi  to  ninlti- 
\)\y  and  activate  tiie  (;ounue!eiitl  nHtttions  hetween  peopie.s,  and  to  IcsstMi  the  distance 
wiiieii  separates  tin-ni. 

Let  this  lie  as  it  nniy,  tin*  first  rij;ht  of  an  iinlependent  static  is  to  insnn*  its  self-pres- 
orvation  hy  all  the  nn-ans  in  its  power.  From  the  time  that  a  sovereii^n,  availing  him- 
Helf  of  his  rijjht,  (inds  himself  olili^red  to  havt^  reconi-se  to  arms  to  suppress  an  ih««cc«c- 
lion,  ami  (htit  in  the  civil  war  irhicli  riMiilln  thv  pmiurttj  uf  forniinvrn  eMlahlinhrH  in  Ibf  conn- 
tri)  in  in  iifi/Htrdji,  in  tint  rit-ir  il  in  a  inihlic  mixfortinn;  ivliirh  /iiirii/nfrH  hIiouIiI  niiffir  ax  ivill 
an  nalirix,Hii(l  wliivli  dorn  not  fulHlv  Ihvm  In  vxirpliitnal  in<lnnnily,  as  they  neither  wonid 
have  that  ri^ht  if  any  other  calnmity  shmild  happen  proceeding;  from  the  will  of  men. 

Sncli  is,  in  its  most  simple  expression,  the  (piestioitahle  point  Hii^;;esteil  to  the  Tnscan 
government.  We  are  impressi-(l  with  the  gravity  ot  tlu^  consei[nences  which  proceed 
from  the  iinestiiMi  of  knowing  if  tho  jninciple  treated  (d'  onght  or  onglit  not  to  be  re- 
Hpe«-ted ;  and  for  this  reason  we  oliey  the  iie(;essity  of  snhmitting  it  in  the  most  frank 
manner  to  the  examination  of  tlu;  Mritish  goverinm^nt.  it  Itelongs  to  it  to  weigh  tho 
tpiestion  in  its  great  wisdom  and  eqnity,and  this  will  lea«l,  as  we  hope,  to  a  qnick  and 
Hatistaidory  sohilion  of  the  ipiestion  which  is  being  discussed. 

Von  aie  charged  to  road  Huh  dittputch  to  the  iiiinistur  uf  tbreign  relationnuf  (ireat 
liritain. 

SCHWAUTZHXHKlUi. 

(Se«  Torre*  Cuic€do,p.  IMU.) 


]'■  ' 


If 


i:i 


Pi 


DiMpalih  from  the  Count  of  XinHilrnih'  to  Baron  liriinow. 

Saint  1'kti;i{siu  luiii,  Mui/  2,  l^.'O. 

The  cabinet  of  Saint  I'elerslmrgh  adlu-res  oomidetely  to  the  principles  which  have 
8ervc<l  as  the  basis  to  the  demand  of  the  <-aliinet  of  \'ienna.  Knssia  is  too  mnch  in- 
tcr4-sted  in  tht^  mainteiianciMif  the  independence  (d'  the  secondary  states  and  in  the 
repose  ot°  Italy,  and  for  this  reason  canind  Imt  associate  itstdf  in  this  case  with  the 
Hontiments  and  politi<-al  views  of  Anstria. 

According  to  the  rnlesof  pnblic  right,  snch  a.s  they  are  underHtood  by  Unssian  policy, 
it  cannot  be  admitted  that  n  sovereign,  oblige  d,  as  was  the  (Srand  Ibiketd"  'rnscany, 
/((/  ilir  ohsliiiarii  nf  bin  rrhillioHM  nihjriiH  to  rvlukr  a  rilij  ovrnptal  ft./  the  insiiriji'nln,  slimilil  In' 
ohiiijai  III  iniliiiinifii  foriiijn  HnlijritH  who  may  hare  nnlfvnd  damaijii*  in  vonHviimnw  of  the 
aHstiull  nndtrliikin  oi/aiii*!  thai  citi/. 

HliiN  a  (wrmni  inyUtlli  himxilf  in  a  nunilrn  other  than  hix  own,  hv  arrrfilx  Ihr  })iixnitiililii  of 
all  Ihf  dnni/rrx  to  irhirh  hi'  maif  Iw  ixpoxid  in  that  ronntrii.  Fjcghorn  revolteil  ;  it  was  m'ces- 
Hary  to  employ  arms  to  reduce  it.  ,<iinn'  l''.nglish  proprietors  ha-'e  participated  in  the 
damages  experienced  by  lln>  native  lUMpiietors.  Why  shonld  tln-v  ahnie  have  the  right 
to  be  indemtiilicd  for  their  losses,  when  the  Tnscan  gov(-rnnu-nt  does  not  indemnify  its 
own  snbjecls  f 

These  reasons  are  «o  clear,  tlnit  Tnscniiy,  Iniving  applied  to  the  Eniperm,  iisking  his 
arbitrament,  tlw  I'miieror,  notwithstanding  the  lively  inten^st  which  he  has  tor  Tus- 
cany, has  not  been  able  fo  accede  to  its  desire.  It  is  not  a  question  of  lignres.  more  or 
less  in  ai int,  which  is  treated  of,  but  of  a  principle,  which  his  imperial  .M.i.j.sty  can- 
not admit — that  is  to  say,  the  prin<'i{d(Md'  any  indemnification  whatever  claimed  as  a 
legit iiiialc  light,  mindi  less  when  it  is  sought  to  exact  il  by  force.  It  would  have  aji- 
])eared  that  he  im|dieitly  sanctioned  it  had  he  (dfered  his  arintration  to  tho  two  parties, 
supposing  Kiigland  had  consenied  to  adopt  the  expedient. 

As  Tuscany  is  disposed  to  lender  conciliatory  explanatiinis,  it  ('oiild  not  enter  into  the 
intentions  ol'  the  Knssian  government  to  tlissnade  it  from  a  friendly  arrangement  with 
the  ICnglisli  government.  Ibit  the  ICinperor  hopes,  frimi  the  justice  and  moderation  of 
the  Knglish  government  itself,  that  it  will  not,  to  obtain  it,  employ  other  than  coinil- 
iatory  iiK-ans  also;  and  tlii<  imperial  cabinet  ought,  in  so  much  as  it  is  concerned,  at 
once  to  make  its  reservations  as  to  ;ill  that  which  it  considers  a.s  in  small  confmniity 
with  the  r gni/.ed  maxims  of  the  law  of  nations. 

Till'  cabinet  id  London  ought  t<»  nii>iini:r  that  onr  of  Ihr  yrarcnf  qiir$tionx  for  thv  indt- 
Itvndinir  of  all  ilir  xtatix  of  thr  ronlinint  ix  Iwinij  Iriatid  nf  In  etieel,  if  what  Liigland 
attempts  to  establish  at  this  moment  witJi  respect  to  Naples  and  Tuscany  should  come 
to  be  atlmitted  tw  a  precedent,  it  would  reHtilt  in  placing  British  subjects  abroad  in  an 


iiul  piisitioii, 
iy^iiiiisl  till' 
tlu-y  would 

tht-y  ('oiist'iit 

1,  it  is  iicccs- 
ich  to  iiiiilli- 
tlio  ilistiinc.u 

itsscll'iin's- 
ivailiiiK  liiiii- 
s  an  iuMiirriT- 
H  in  Ibi-  ciinn- 

miff'ir  111  irill 
K'iilicr  woiilil 
I  will  of  iiu'ii. 
ti»tluiTusi'an 
hicli  procci'tl 

not  to  ht!  rt!- 
itt  most  tVaiik 

to  wtiyli  tlitt 
i>  a  tiiiii-k  and 

tionnuf  (jreat 

y.KNHKUG. 


Man  'i,  l«.')0. 
s  which   havo 
too  niiK'li   in- 
and  in    the 
sd  with   till! 

issian  policy, 

of  Tuscany, 

rii/n,  hIidiiIiI  In' 

K/i/cHcr  of  Ihv 

■  pilXHUlililjl   of 

it  was  ncccs- 
i|):itcil  in  tlic 
avc  the  ri^ht 
indemnify  its 

1.  askinu  his 
has  hn-  Tiis- 

fiiii's,  nioi'c  of 
Majesty  can- 
•lainii'il  as  a 

luld  have  n\>- 
two  patties, 

•nter  into  the 
iHeineiit  with 
iioderation  of 
i-  than  eoneil- 
I'oiH'erned,  at 
11  eoiiforniily 

H  far  llif  inili- 
hat  Hne;land 
should  ciune 
uhruud  ill  an 


GENEUAL    ATJ'ENDIX. 


.^G5 


pxrcpti(Uial  position,  very  superior  to  tho  advanta;;es  i-njoycd  hy  the  inliahitants  of  tins 
other  countries,  and  a  situation  intolcrahle  for  the  ;rovei'ninents  who  i-eceisi-  them. 

Instead  of  heinji,  as  up  to  tlio  present  time,  a  heiielit  to  the  countries  where  they 
estalilish  themsidves,  .md  to  which  they  hriiij,',  with  their  wealth  and  industrial  re- 
sources, the  haliils  of  I'lorality  and  oidiu'  which  so  hoiiora)dy  distin;;uish  the  ICn^jlisli 
]ieople,  their  presence  would  he  a  perpetual  inconvenience,  and,  in  certain  cases,  a  real 
altliction.  'I'heir  piesence  would  l>e,  (or  tln>  promoters  of  insurre<'tions,  a  stimulant  to 
revolt,  hecause,  if  Itehiud  the  harricades  thi>re  should  he  conliniially  raised  the  threat- 
ening; eventuality  of  future  reclamations  in  f.ivor  ni'  l''.u<;lish  siihjects  who  may  havo 
received  injury  in  their  property  hy  the  suppression,  all  soverei;^iis,  whom  their  ptisi- 
ti<uis  and  respective  weakness  eX]>ose  to  the  coercive  ineasurcs  id  an  Kii<;li-ih  licet, 
would  lieeome  powerless  ill  tho  presenci' cd"  an  insurrection;  they  could  not  dure  to  uso 
coercivtf  me.ins,  and  if  they  used  them,  would  have  to  examine  the  details  of  the  ope- 
ration, estimate  the  necessity  or  uselessiiess  cd"  this  or  that  sfrate;^i(!  measure,  which 
mi;;lit  expose  the  Kn<r|ish  to  sull'er  losses;  they  would  have,  tiiially,  to  recoH;ni:'.e  thu 
l'!u;;llsh  j^overnment  as  Jiidyo  hetweeii  Noveroij^ii  and  stihject  in  matters  of  civil  war 
and  ot'  interior  KovcriiiniMit. 

riii>  Emperor  cannot,  tli(*n,  Huhscriho  to  hiiuIi  a  theory.  |[u  will  iievi>r  compromise  in 
the  matter  of  the  prineiples  which  \n'  hasjiistsel  forih.  I''or,  \vvy  much  disposed  as  ho 
may  he,  and  as  he  always  has  hecii,  to  receive  with  henevoleiice  individuals  heloiij;in;; 
to  the  Itritish  nation,  his  esteem  for  whose  (diaracter  is  known,  if  (daims  like  those 
whiidi  have  heeii  made  ai^aiiist  Najdes  and  'ruscmy  may  he  sustained  hy  force,  ho 
wimid  l)e  under  the  necessity  of  examinin;;  ami  id'  tixiii;;  in  a  more  formal  way  the  (roii- 
ditions  upon  wlii(di  he  will  lieiicid'orlh  eonsiMit  to  allow  to  British  siilijiM'ts  i  lu;  ri^^ht  of 
residence  and  of  property  in  his  states. 

The  K'ussian  ;;overiinient  ho|)esthat  the  I'^ajjlish  cahinet  will  accept  these  retlections 
in  the  impartial  s|drit  in  wliitdi  they  have  heen  dictated,  and  th.it  it  will  not  losesi;rht 
of  them  III  the  course  which  it  may  adopt  with  respect  to  Naples  and  'I'uscany.  The 
<.'«««('  iif  tliixf  in  thai  of  all  a-rak  atalfs  n-hina'  rsislciirc  is  ijaiiranlii  il  alone  hij  Ihv  maiitU  nance 
of  lh(  tnhlar  prinriiihn  n'hich  han- jn^l  hnn  inrohal.  At  the  |ircseiit  moment,  more  I  hail 
ever,  the  resp«'cl  of  these  principles  hy  the  <;reat  powers  aloiii-  can  preserve  Ijirupe 
from  the  greatest  disturhances.  ' 

Voii  will  coinmunicatu  to  i>ord  l'uliiiur8toii  this  dispatuli,  and  you  will  ;;ivti  him  a 
co|iv  of  the  same. 

NESSELKODE. 

(See  Tones  Caicedo,  p.  :M8.) 

Tilt'  IJiiittMl  Stiiti'.s  followcil  tlii'soi  i)ro(MMl(Mits  wlieu  (IccliiiiiiiL,',  in  iSrtG, 
till'  r«'<|iii>st>  of  our  citi/ciis  tliat  wo.  slioiild  a.sk  iiidtMiiiiitii's  for  their 
lo.ssc.-H  susraiiu'd  in  titti  Itoiiilcu'diiuMit  of  Valparaiso.  Sec  opinion  oi" 
Attorn«\v-(M't('ial  Stanlicry,  (lU  Opiii.,  \MiH'  21.)  Sct^  also  (Mnrcspontl- 
viu-i"  l)('t\v«'«'ii  .Ml'.  Si'iMt'taiy  Miiicy  and  tlie  Count  de  ►Sartij^t^s.  (A'./'. 
Ihc.  Xo.  !»,  *Vt'«(j/r,  ii'fth  Conijrcss,  1st  .srssioii.) 

:i.— CAI'TIKES  HY  EEDEHAL  CUKISEHS. 

Tho  rnU»  on  this  snhjcct  was  laid  tlmvn,  in  tonns  whiirli  liavo  Ih'coiuo 
elas.sical  aii'J  aturi'pti'd  as  the  staiidaid  authority  in  all  Europe,  by  Lord 
Manstietd,  in  the  ineiiioir  on  the  Silesian  loan  : 

The  law  of  nations,  foiinde(l  upon  Justice,  e(|uity,  coiiveniencr,  and  the  reason  of 
the  thiny;.  and  coiilirined  hy  lony;  usay;e,  does  md  allow  of  re|>risals  except  in  case  of 
viideiit  injuries  direeied  or  siipporleil  hy  the  state,  or  Justice  aluolutely  denied  in  re 
inininie  (Inbia  hy  all  tin-  I rihunals,  anil  afterward  l»y  the  ju'luce.  Where  the  Judges  are 
left  free,  and  i^ive  sentence  aecordinj^  to  their  cnuseieiu'e,  t hoiiirh  it  should  he  erro- 
neous, that  would  he  no  ^rroiind  for  reprisals.  Upon  doul>iful  (lUestions.  dilferent  m  -n 
think  and  Jad^t^  diltereiitly;  and  all  a  foreigner  can  desire  is,  that  Justice  should  ho 
im|iaitially  administured  to  him,  as  it  is  to  the  siihjects  of  that  prince  in  whose  coiirt.s 
the  matter  is  tried. 

Thsit  our  adinirality  courts  had  idl  the  intolli<;ence  and  impartiality 
that  (Mil  he  retpiired  was  repeatedly  admitted  by  leading"  memhers  ot 
I  he.  Ilrilish  {;()\'ernment  during;  tho  rebellion.  Tin?  tollovviii},^  extiaets 
iwo  selei'ted  lor  the  reasou  that  tho  speeches  from  which  they  are  taken 
were  made  tit  ii  late  period  of  the  war,  iind  jifter  ti  very  jireat  number  ot 
atljiidieatioiis  had  beuu  nuide,  and  had  become  known  to  the  liritlsh 
{govern  uieut. 


r-i 


:^GG 


GKNKUAL    API'ENDIX. 


^§. 


' 


k 


»1' 


!l!^ 


On  tlic  ILMIi  Fobniary,  1804,  in  reply  to  Hfiictiiros  on  sonio  dt'cisions 
in  prizf  r;is»'s,  tlio  sittorneygeneisil,  Sir  Koundcll  I'aliner,  said,  in  tlio 
House  ot'l^oniinonH: 

I'IkmikIi  ill  tliK  jinl|;iii(>iitN  of  tin*  riiiti'il  ShitcH  pii/c-roiirt  tln're  may  Ito  paNsnut's 
open  to  rriticiNiii  iipo  i  iiiiiltiTs  of  IckuI  tln-nry,  aixl  alMniii;>li  I  am  tar  tVoni  sayin;;  tliaf. 
tlii-y  liavi-  always  appllnl  llii'  priiiciplcH  nt'  law  corrci'tly  to  tli*-  tacts <it'  tlir  vtisv,  yet  ] 
am  mil  awan-  nf  one  hiii^lt-  (li-iiNic  ii  promtiiiiccil  ilii:iii;>  tlic  war  in  any  onr  i>t°  tliosc 
coiii'ts  wliicli  <lii«'H  not  Itrar  iipoii  iIh<  faci'  of  it  Nijrns  nl'  an  lioiu-Ht  intnitioii  to  adiiiiii- 
iHtiT  till'  law  as  rrccivcil  in  tin-  I  'nitcil  States ;  and  tlic  caM-  of  tlic  Spring!  oi<  is  no  i-x- 
ccptioii  to  that  lull*.  In  all  tlit^  tliifi-  poiiitN  to  w Inch  my  iioiioialilt-  tiicnil  lias  n  lined, 
wlirilicr  or  n<»  the  itnnciplcs  wrrc  ri;;litly  applied  to  the  tacts  an<l  evidence,  the  de- 
cision come  to  was  based  on  principles,  lie  they  lijrlit  or  ho  tliey  wroiin,  which  wero 
principles  of  our  own  pri/c-cotirtH  in  thu  war  with  l<'rancu. 

In  the  Huino  debate  Lord  I'rtlinerston  said : 

I  think  it  ri>jht,  however,  to  state,  with  repnd  to  the  Oovernmont  of  the  I'liitcd 
States,  what  has  indeed  heeii  already  stated  hy  my  lionoraldtt  and  learned  tiieixl,  the 
atloiiii'V  };iMieral,  that  we  have  no  reason  t*i  inintriist  the  eipiity  and  independence  of 
the  triliniials  of  the  Cnited  States  \\hi<'h  have  to  try  i|nestions  such  as  those  now 
under  discussion ;  and  if  is  Imt  din^o  fln^  (Jovernment  td"  the  I'niied  Stales  to  say 
that  thi'.\'  have  invariahly  received  oiir  representations  in  a  spirit  of  respect,  erpiiiy, 
und  .justice.  And  in  proof  of  this,  to  show  that,  when  we  had  a  stron;;;  case  of  remon- 
Nlraiicc,  jiisliec  has  heeii  done  to  ns  hy  the  I'liited  States,  I  need  only  refer  to  the  case 
of  the  Trent,  in  which  the  (ioveinnieiit  of  th*^  I'liitcd  States  very  handsomely  and 
pro|ierly  did  Justice  to  the  demands  we  made,  and  the  ri):;lits  they  did  not  deny. 
Therefore,  I  tliink  it  Ih  prejudicial  to  the  <rood  nnderstandiii;^  lielweciithe  two  gov- 
ernments, which  are  on  nood  terms,  that  we  should  here  accuse  a  forei;rn  ;j;overiiincnl 
of  that  of  w  liicli  it  is  not  ^uiity,  and  express  mistrust  of  tliiir  e<  pi  it  y  and  fairness  when 
nothing  lias  occurred  to  Justify  IIS  in  mal<in<;  these  impiilations.  I  think  it  only  i'i;;lit, 
in  re;r;iii|  to  the  trilinuals  and  (ioveriimeut  of  the  I'liited  Slates,  to  declare  that  such 
uccusatioiiH  arc  not  Just,  and  that  nothing  Iiiih  occurred  to  warrant  tliuiii. 

Tlie  coiilidence  of  eacli  of  tlie  two  ;i;overiim«'nts  in  tiie  intt'.urity  iuid 
ability  of  the  prize-courts  of  tiie  otlier  lias,  siiiee  all  the  tiiuisactioiis 
\vhi<'h  can  eoiiie  iiiider  examination  by  the  hijjh  eotnmission,  bi-eii 
eviiM'cd  by  an  act  witiiont  parallel  in  diplomatic  history. 

The  additional  coii\cntion  in  relation  to  the  slave-trade,  concluded 
June  .J,  1S7U,  provides: 

AllTICUC  III. 


iilli 


f: 


■I 


lit 

r 


m 


M  . 


I  iMtcd  states  cruiser,  it  one  should  lie  availaole  m  the  neijfliliorhood  ot  the  capture; 
ami  that  in  the  correspondiii<r  ease  of  a  Mritish  mcreliant  vessel,  searched  hy  a  rnilcd 
States  cruiser,  lieiii<;  detained  as  having  lieeii  en^a;;ed  in  the  .\frican  slave-trade,  or 
a.s  hiiviii;;  liecn  lit  ted  out  for  the  pur|ioses  thereof,  she  shall  he  sent  for  adjudication 
to  the  nearest  or  inont  accessilde  I'.iilish  etdmiy,  or  shall  he  handed  over  to  a  ISiitisli 
cruiser,  if  one  Hhould  li(«  availahle  in  tho  neighborhood  of  thu  capture. 

Tender  this  provision,  (Ireat  Britain  submits  to  the  adjtulication  of 
our  courts  the  valitlity  of  (^ajitures  made  by  her  own  cruisers,  and  it  re- 
sidts  from  this  and  from  the  lifth  arti(de  of  the  orijuinal  treaty,  (lli  ISfaf., 
lli.JL*,)  that  if  an  American  court  pronounces  af^ainst  the  capture  of  an 
American  vessel  by  a  liritish  cruiser,  and  awards  restitution  with  dain- 
ajjes,  the  British  government  stands  engaged  to  pay  such  damages 
within  one  year. 

4.— TRKATMKNT  OF  HUITISII   SITRJECTS  AS  TO  PERSOXAL  KinHTS-AUIlI- 
TUAKY  AUUESTS-COMl'ULSORV  MILITARY  SERVICE,  ETC. 

This  head  of  possible  inquiry  by  tlie  high  commission  is  treated  with 
such  general  candor  and  fairness  by  Professor  Mountague  Bernard,  in 


?  (It'cisioHS 
laid,  ill  till' 


y  I"'  passnijos 
II  hiiyiii;;  tliat 
III'  riisf,  yi't    1 

(MIC  of    lIlllHI- 

ion  to  ii<liiiiii- 
i>l'ok  is  no  fx- 
1  lias  nil  rnil, 

U'llCf,  llli-    ilc- 

;,  wliirli  wiTo 


i.f  tlio  Uiiit.'il 
i-il   iVii'iiil,  till' 

l('|lllllllllt0    of 

as  iliosi'  now 
States  to  say 
•Hi>i'('t ,  ri|iiiiy, 
rasi'  of  ri'iiioii- 
liT  to  the  case 
MKlsoiMi'ly  anil 
iliil  not  ilrny. 
till'  two  nov- 

;il   n;(|\  rrnilll'lll 

fairness  wlieii 
k  it  only  rinlit, 
hire  lliat  siieli 

itt'.u'rity  inul 
tiiiiisactioiis 
issioii,  bt'iMi 

coiicliuk'il 


by  a    nrilifli 

,  or  as  liaviii^; 

or  Key  West, 

leil  over  to  ;i 

tlie  caittiire; 

by  a  I'nited 

nlave-traile,  or 

ailjiiilii'alioii 

to  11  Hvitish 


ulication  of 
s,  ami  it  ri'- 
,v,  (12  ^7(f^, 
)tnr('  of  an 
I  with  (lain- 
!li  dainaj^es 


;hts-akbi- 
;tc. 

reattMl  with 
Buruard,  iu 


GEN'EKAL   APPENDIX. 


307 


Chap.  XAT  of  his  "  Xi'iitiality  of  (iit'iit  Hiltaiii  diiriii};  tlir  Ainciican 
Civil  War,'' and  in  Mr.  AWIiott's  iiit'inoiandiiin,  appt'iidrd  to  the  ii'poit 
of  the  IW'itish  roiiiiiiissioncrs  on  tint  laws  of  natinalixatioii  and  allc^'i- 
aiK'c,  from  which  I'roft'ssor  Itcrnard  niakcs  considctalih^  citation,  that 
it  scciiis  iiiint>(;c.ssa.y  to  do  more  than  refer  the  lii;;h  coininission  to  those 
l»apcrs. 

it  may  he  eonvenient,  how«'ver,  tt)  furnish  references  to  some  of  tlie 
anthoi'itics  which  estiil>lisli  the  liahility  of  p(>rsons  domiciled,  for  c<»in- 
inercial  purposes,  in  a  hellioemit  re;;ion  to  he  treated  as  iiidisiliionish- 
ahle  li'om  the  active  enemies,  in  the  midst  ol  whom  tliey  are  tniiiid. 

Professor  Ahdy's  etlition  of  Kent  on  Internatioiiid  Law,  »hap.  v.,  be- 
in;;  section  iv  of  Keiil's  Commentaries,  vol.  1,  pa^^'c  7."*,  tt  .sr*/.,  of  orioi- 
iial  pagination;  NVildinan  Inter,  liaw,  vol.  L',  paj^e  lit  and  pa;:e  7S; 
riiillimore,  vol.  3,  paye  lliS;  Calvo,  tome  1,  pay;e  L'JL' ;  The  i'i/airo, 
('J  Wheaton,  I'UI;)  Laurent's  (tase,  joint  eoiirnission  under  treaty  of 
18.k{,  between  the  L'nited  States  and  (Iruat  iiritaiii,  paj^e  IJO  vt  mq. 

Since  these  instructions  were  <;iven  a  HrKish  blue-book,  relatin;;  to 
the  "Claims  «)t  IJritish  sul>jectsa;;ainst  tlu^  L'nited  States  tiovernmcut, 
I'loin  the  ('ommenccment  of  tlie  civil  war  to  tiie  .{(Mh  of  Miircli,  l.Stlt," 
which  liatl  bt'cn  lepiinted  in  the  diplomatic  correspondi'iicc,  sulMiiitted 
to  Con^^ress  in  tin-  year  istil,' (Diplomatic  ctu'respondeiice,  l.stit,  pii't 
1,  paof  T.'ili,)  has  been  repriiite«l  in  ou(>  of  the  leading;  Journals  of  the 
country,  with  a  view  undoubtedly  of  enaldino^  the  pulilic  to  see  that 
most  ol  the  claims  th'scribed  in  it  have  been  disp<»se(l  of. 

An  analysis  of  that  document  shows  the  followino;  r»'siilts: 

Three  liundK'd  and  twenty-one  cases  of  the  lour  hundred  and  fifty 
therein  enumerated  have  been  disposed  of. 

Of  these  forty-three  were  eases  in  which  the  Ilritish  j;oveiiiment  re- 
fused lo  interfere,  on  tlu*  ailvice  of  the  law  olhceis  of  tlu'  Crown. 

OiM'  humlred  and  sixty-seven  cases  have  been  i'ondemnetl  by  the  i)rize- 
coiirts  of  the  United  States.  With  the  exce|»iion  (»f  (Uie  case,  that  «d' 
the  Springbok,  the  ])e|)artiiient  ol  State  is  not  aware  of  a  tlispusition  on 
the  part  of  the  Hritish  government  to  dissent  to  any  linal  adjudication 
of  tin'  Supreme  Ciuirt  of  the  Cnited  States  in  a  |Mi/,e-«'asc.  The  Su- 
]ii'eme  Court  has  in  several  cases  reversed  condemnations  made  by  the 
inferior  tribunals  of  prizes,  in  some  ol  which  Con;;ress  has  made  appro- 
])iiations  for  the  iii<lemnilication  of  the  owners  of  the  property  cai>- 
tiired. 

In  most  of  the  ciises  where  it  is  stated  that  vessels  have  Ix-eii  con- 
demned, but  that  appeals  arc  pendin;;^,  the  condeinnations  by  the  courts 
below  have  been  Hustained. 

In  sixty-threc!  cases  it  ajipears  that  i»roperty  taken  by  the  Cnitetl 
States  has  been  restored,  and  that  pt'isiuis  imiuisoned,  or  slid  to  have 
been  illegally  enlisted,  have  been  releaseil. 

While  th^'.  «;onfereiiees  were  bein^jf  held  iu  Washin;^ton,  a  correspond- 
ence was  ^f'li.!-;  on  in  Eiif^land  betwe»'ii  the  foreiy;n  oilice  and  Hritish 
subjects  1  sidii  ^^  in  France,  and  preferring  claims  for  the  loss  of  prop- 
erty since  (he  'Mitry  of  the  (rcrmaii  army  into  France.  A  portion  of 
this  (Hirrespenik'nce  has  been  published  in  lilue-IJook  No.  4,  for  1.S7I, 
Franco  Gi!ruiau  War.  Tlie  fidlowing  letters  from  this  publication  bear 
directly  rpon  the  (|uestiuns  considered  iu  this  portion  of  the  "conlidcu- 
tial  memurauduui." 


m 


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Photographic 

Sdences 
Corporation 


73  '  VEST  MAIN  STREET 

WeBSTER,  NY.  14580 

(716)  872-455  3 


s 


i/.A 


368 


GENERAL   APPENDIX. 


I" 


Ko.  3. 

Uarl  Granville  to  Lord  Lyons. 

Foreign  Office,  January  11, 1871. 
My  Lord  :  I  have  received  yonr  excellency's  (lispatch  of  the  6th  in- 
stant, inclosing  a  letter  from  Mr.  Kirby,  an  English  gentleiniin,  estab- 
lished witii  his  family  at  La  Ferle  Inibanlt,  complaining  of  the  conduct 
of  the  German  troops  in  making  requisitions  on  his  property ;  and  I  have 
to  instruct  yon  to  acquaint  that  gentleman  that  much  as  Her  Majesty's 
government  regret  the  inconvenience  and  loss  to  which  he  ami  his 
family  were  exposed,  it  is  out  of  their  power  to  interfere  to  obtain  any 
redress  for  him,  inasmuch  as  foreigners  residing  in  a  country  whicii  is 
the  seat  of  war  are  equally  liable  with  the  natives  of  this  country  to  have 
requisitions  levied  on  their  property  by  the  belligerents. 
I  am,  &c., 

GKANVILLE. 


No.  10. 


Uarl  Qranville  to  Mr.  West. 


I 


1 


it  ■ 
w 


Foreign  Office,  March  1,  1871. 
Sir:  I  have  consulted  the  law-officers  of  the  Crown  upon  the  point 
submitted  to  me  in  your  dispatch  of  the  24th  February,  as  to  the  claims 
of  British  subjects  to  be  indemnified  for  the  loss  of  property  during  the 
war;  and  I  have  now  to  acquaint  you  that  I  am  advised  by  them  that 
Her  Msijesty's  subjects  resident  in  France,  whose  proi)erty  has  been 
destroyed  during  the  war,  cannot  expect  to  be  compensated,  on  the 
ground  of  their  being  British  subjects,  for  losses  which  the  necessities 
of  war  have  brought  upon  tliem  in  common  with  French  subjects. 
I  am,  &c., 

GKANVILLE. 


U 


Foreign  Office,  March  28, 1871. 

Sir:  I  am  directed  by  Earl  Granville  to  acknowledge  the  receipt  of 
your  letter  of  the  22d  instant,  containing  a  statement  of  certain  property 
possessed  l)y  you  in  Paris  and  the  neighborhood,  and  referring  to  the 
losses  which  you  state  you  have  sustained  in  consequence  of  the  occu- 
pation of  such  property  by  French  and  German  troops,  and  requesting 
that  your  interests  may  be  placed  under  the  protection  of  Lord  Lyons, 
with  the  object  of  your  claim  being  ultimately  urged  upon  Ihe  French 
government  on  account  of  such  losses  and  dilajndations. 

I  am  now  to  inform  you  that  Lord  Granville  has  taken  the  opinion  of 
the  law-otticers  of  the  Crown  as  to  the  liability  of  the  French  govern- 
ment to  compensate  British  subjects  resident  in  France  for  loss  and 
damage  to  their  property  during  the  late  war,  an.!  that  his  lordship 
has  been  advised  by  them  that  the  British  subjects  re^sident  in  France 
would  have,  in  their  opinion,  no  just  ground  of  complaint  against  the 
French  authorities  in  the  event  of  their  property  having  been  destroyed 
by  the  invading  armies ;  their  losses  under  such  circumstances  would 
be  among  the  inevitable  consequences  of  war  raging  in  a  state  within 


GENERAL   APPENDIX. 


369 


which  they  have  chosen,  as  foreijjners,  to  take  up  their  residence;  and 
with  reyard  to  siidi  h)sses  Britislj   subjects  wouM  not  be  entitled  to 
claim  any  compensation  from  the  French  authorities. 
I  am,  &c., 

E.  HAMMOND. 


No.  21 


Mr.  Stewart  to  Earl  GronvUle. — {Receired  August  31.) 

33  Upper  Brunswick  Plate, 

Brighton,  March  30,  l.SJl. 

My  Lord  :  I  have  the  honor  to  acknowledfje  your  lordshii)'s  letter 
of  the  2<Sth  instant,  in  answer  to  mine  of  the  22d,  on  the  sul)je(!t  of  the 
losses  [  have  sustained  by  the  occupation  of  my  houses  in  I'aris  and  its 
neighborhood  by  French  troops  <luring  the  late  war,  informing  me  that 
your  lordshi[)  had  taken  the  opinion  of  tlie  law-othcers  of  the  Crown  as 
to  the  liability  of  tiie  French  government  to  compensate  British  subjects 
resident  in  France  for  loss  an<l  damage  to  their  ))roperty  during  the 
late  war ;  and  that  your  lordship  had  been  advised  by  them  that 
British  subjects  resident  in  France  would  have,  in  their  opinion,  no 
just  ground  of  complaint  against  the  French  authorities  in  the  event  of 
their  property  having  been  destroyed  by  the  invading  armies. 

I  beg  to  submit  to  your  lordship  that  my  case  does  not  come  within 
the  terms  of  the  one  submitted  to  the  law-ofticers  of  the  Crown.  At 
the  commencement  of  tlie  siege  of  Paris  all  the  inhabitants  of  Boulogne- 
surSeiiu",  were  ordered  by  the  Fretuih  governnient  to  leave  their  houses, 
and  my  tenant  at  No.  .5  Avenue  des  Princes,  Boulogne  sur  Seine,  ac(!or(l- 
iiigly  removed  his  furniture  and  gave  up  posses.sion  to  the  authorities, 
who  occupied  the  premises  for  more  than  live  months,  with  ui)\vard  of 
150  French  soldiers,  who  remained  in  it  until  the  signature  of  the  treaty 
of  peace,  an«l  then  left  it  in  tiie  most  ruinous  conditon.  Tiie  (lermau 
troops  passed  one  night  on  the  [>remises  after  the  temporary  occupation 
of  Paris,  but  did  no  additional  damage  to  the  property.  My  other  houses 
within  the  enceinte  of  Paris  were  occupied  wholly  by  F.encii  troops  and 
French  peasants.  '-No  destruction  of  propeity  b^'  invading  armies"  con- 
sequently took  place  in  my  case. 

In  my  op:nion,  my  claim  is  similar  to  that  made  by  your  lordship  on 
the  German  Government  for  the  loss  sustained  by  British  shipowners 
whose  vesvsels  were  seized  ami  sunk  near  Rouen.  In  the  one  case  ships 
were  seized  and  destroyed  by  the  German  atithorities;  and,  in  the  other, 
houses  were  seized  and  destroyed  by  the  French  authorities,  both  bo«- 
longing  to  British  subjects,  and  demanding  similar  compensation. 

I  have  iu>w,  therefore,  to  beg  that  your  lordshi}*  will  be  so  good  as  to 
forwanl  niy  claim  on  the  French  government  to  Lord  Lyons,  with  a 
request  that  his  excellency  will  give  me  such  assistatu'e  as  may  be 
required  in  his  capacity  of  English  ambassador,  in  order  to  iruluce  the 
French  government  to  entertain  my  claim  when  the  proper  tinu^  shall 
arrive  for  submitting  it  to  the  authorities.  I  beg,  however,  to  add  that 
I  am  informed  that,  by  the  law  of  France,  compensation  is  due  not  oidy 
to  foreigners,  but  to  French  subje<!ts  for  injury  doim  to  their  property 
by  invading  armies,  and  for  the  occupation  of  their  houses  by  French 
troops,  and  for  damages  resulting  therefrom.  I  trust,  therefore,  that  it 
will  not  be  necessary  to  call  for  'jord  Lyons's  intervention. 

1  have  thought  it  my  duty  to  trouble  your  lordship  with  this  letter, 

24  H 


370 


GENERAL    APPENDIX. 


in  order  that  T  may  point  out  thfi  differonce  between  my  case  and  that 
submitted  to  the  hiw-ofiicers  of  the  Crown,  and  I  may  add  that  I  think 
it  will  be  fonnd  tliat  few  Britisli  subjeets  are  iu  the  same  position  as  I 
am  with  respeet  to  n)y  French  property. 
1  have,  &c.,    ' 

ClIAS.  STEWART. 


I'^i'- 


iS'^ 


«a' 


I 

'  -.  i 


ti.i. 


No.  23. 
Viscotint  Enfield  to  Mr.  Stewart. 

Foreign  Office,  April  13,  1871. 

Sir:  I  am  directed  by  Earl  Granville  to  acknowledge  the  receipt  of 
your  letter  of  the  30th  ultimo,  in  which,  with  reference  to  the  answer 
whi(rh  Lord  Granville  caused  to  be  returned  to  your  letter  of  the  2LM  of 
March,  respecting  the  losses  which  you  state  you  have  sustained  by  the 
occupation  of  your  houses  in  Paris  and  the  neighborhood  by  French 
troops  during  the  war,  you  now  submit  that  your  case  does  not  come 
within  the  terms  of  that  which  had  been  submitted  to  the  law-oflicers 
of  the  Crown,  and  upon  whose  opinion  witli  reference  thereto  the 
answer  to  your  representation  had  been  founded,  inasmuch  as  there 
was  "no  destruction  of  property  by  invading  armies,''  but  that  the  dam- 
age was  caused  in  conse«pience  of  the  occupation  of  your  property  by 
French  troops,  which  property  had  been  vacated  by  or<lersof  the  French 
authorities  themselves. 

I  am  now  to  state  to  you  that  Lord  Granville  has  taken  the  opinion 
of  the  law-officers  upon  your  further  application,  and  1  am  to  observe 
that  Her  Majesty's  subjects  resident  in  France  cannot  of  right  claim  to 
be  in  a  better  position  in  respect  to  their  immovable  i)roperty  in  France 
than  French  subjects,  and  that,  if  you  have  been  correctly  informed  as 
to  the  law  of  France,  the  intervention  of  Her  Majesty's  government 
will  not  be  required  to  enable  you  to  prefer  a  claim  before  the  French 
authorities  to  compensation  for  any  losses  resulting  to  you  from  the  oc- 
cupation of  your  houses  by  French  troops.  But  whether  you  have  been 
correctly  infornied  or  not,  Her  Majesty's  government  cannot  intervene, 
if  you  receive  at  the  hands  of  the  French  government  the  same  treat- 
ment which  French  subjects  themselves  recteive. 

With  regard  to  your  allusion  to  the  case  of  the  British  ships  which 
have  sunk  at  Rouen,  I  am  to  observe  that  there  is  no  analogy  betweeu 
ships  and  immovable  jnoperty. 


I  am,  &c., 


ENFIELD. 


Another  pertinent  case  has  recently  been  decided  by  the  British  gov- 
ernment against  a  claimant.  Mr.  Worth,  a  British  subject,  claimed 
indemnity  on  account  of  imprisonment  to  which  he  was  subjected  by 
the  German  authorities  ou  his  cai)ture,  iu  an  attempt  to  escape  froiu 
Paris  in  a  balloon. 

Lord  Enfield,  in  a  note  of  the  3d  of  April,  informs  Mr.  Worth  that 
LonI  Granville  regrets  that,  '''■after  consultation  with  the  proper  laicad- 
viser  of  the  Crown,  he  does  not  feel  jiifttified  in  placing  such  a  claim  on  your 
{Mr.  Worthls)  behalf  before  the  German  goDerament.'^ — Britinh  Blue- Book, 
1871;  Correspondence  respecting  the  imprisonment  of  Mr.  Worth  by  the 
rrussians. 


IV.- 


^e  and  that 
hat  £  think 
osition  as  I 


EWART. 


:  13,  1871. 

e  receipt  of 
the  answer 
r  the  2LM  of 
ined  by  the 

by  French 
3S  not  came 
law-officers 
thereto  tlie 
ih  as  there 
at  the  dam- 
[)ro|)erty  by 

the  French 

the  opinion 
to  observe 
^lit  claim  to 
y  in  France 
nfornied  as 
government 
the  French 
rom  the  oo- 
i  have  been 
t  intervene, 
same  treat- 
ships  which 
gy  betweeu 


S^FIELD. 


IV.-LNSTRUCTIONS    TO    THE  BRITISH  COMMISSIONERS    RE- 
PRINTED  FROM   BLUE-BOOK,   "NORTH  ' 
AMERICA,  No.  3,  (1871.)" 


British  gov- 
ct,  claimed 
ibjectetl  by 
scape  from 

^orth  that 
>l)er  law-ad- 
lim  on  yoiii' 
Blue- Book, 
orth  by  the 


St 


IV.-INSTRUCTIONS  TO  HER  MAJESTY'S  HIGH  COMMISSIONERS. 


No.  1. 
Earl  Granville  to  Her  Majesty's  High  Commissioners. 

Foreign  Office,  February  1),  1871. 

My  Lord  and  Gentlemen:  The  Queen  luivirig  been  }?racioiisl.v 
pleased  to  appoint  you  to  be  Her  Majesty's  high  coininissioners  to  pro- 
ceed to  Wasliingtou  for  the  purpose  of  discussing  in  a  friendly  spirit  with 
commissioners  to  be  appointed  by  the  Government  of  the  United  States 
tlie  various  questions  on  which  ditterences  have  arisen  between  Great 
Britain  and  that  country,  and  of  treating;  for  an  agreement  as  to  the 
mode  of  their  amicable  settlement,  I  inclose  the  necessary  full  powers, 
and  have  the  honor  to  convey  to  you  the  following  instructions  for  your 
guidance. 

It  is  the  earnest  desire  of  Her  Majesty's  government  that  the  import- 
ant negotiation  with  which  you  are  intrusted  should  be  conducted  in  a 
mutually  conciliatory  disposition,  and  with  unreserved  frankness  in 
your  communications  with  the  high  commissioners  or  members  of  the 
Government/  of  the  United  States  with  whom  you  may  be  placed  in 
commnnication,  and  they  believe  that  this  object  cannot  be  better 
attained  than  by  leaving  you  full  discretion  as  to  the  manner  in  whicli 
the  subjects  which  may  engage  your  attention  shoidd  be  discussed. 

The  i)rin<'ipal  subjects  will  probably  be — 

1.  The  fisheries. 

2.  The  free  navigation  of  the  river  St  Lawrence  and  privilege  of  pass- 
age through  the  Canadian  canals. 

3.  The  transit  of  goods  through  Maine,  and  lumber  trade  down  the 
river  Saint  John. 

4.  The  Manitoba  boundary. 

5.  The  claims  on  account  of  the  AJabama,  Shenandoah,  and  certain 
other  cruisers  of  the  so-styled  Confederate  States. 

6.  The  San  Juan  water-boundary. 

7.  The  claims  of  British  sulyects  arising  out  of  the  civil  war. 

8.  The  claims  of  the  people  of  Canada  on  account  of  the  Fenian 
raids. 

9.  The  revision  of  the  rules  of  maritime  neutrality. 

Copies  of  all  the  correspondence  which  have  been  presented  to  Parlia 
meut  respecting  these  questions  will  be  forwarded  for  your  use. 

1.  The  fisheries. 

On  the  termination  of  the  reciprocity  treaty  of  the  5th  of  June,  1854, 
by  the  United  States  Government,  the  discussions  respecting  the  rights 
of  American  fishermen  under  Article  I  of  the  convention  of  the  20th  of 
October,  1818,  which  had  been  set  at  rest  by  the  reciprocity  treaty, 
were  revived,  and,  although  temporary  measures  were  taken  to  avoid 
pressing  with  severity  upon  American  fishermen  by  the  adoption  of  a 


374 


GENERAL    APPLNDIX. 


[ )  \  t;'i  ■ . 

Mb'' 


H 


r 


M 


m 


system  of  liconsos,  it  has  boon  foniul  impracticable  to  continue  tliHt 
system  iiKleliiiitely,  and, on  its  witljdrawal,  much  excitement  has  been 
occasioned  amonjf  tlie  coast  population  of  tlie  Eastern  States  of  the 
Union  l)y  the  ca])ture  of  boats  engaged  in  iHegal  fisliing,  contrary  to 
the  convention  of  1818. 

The  corres|)ondence  will  put  you  in  possession  of  the  facts  of  the  sev- 
eral captures,  and  enable  you  to  judge,  and  explain,  if  necessary,  how 
far  the  pretensions  of  the  American  tisliermen  are  exaggerated,  and  the 
leniency  with  which  they  have  been  treated  under  the  (lirections  of  Her 
Majesty's  government  and  of  the  government  of  the  Dominion  by  tlie 
otticers  charged  with  the  protection  of  the  British  fisheries. 

Irrespe(!ti  ve,  however,  of  the  captures  and  confiscations  of  boats  during 
the  recent  fishing  season,  there  are,  and  have  been  for  many  years,  dif- 
ferences of  interpretation  put  upon  the  convention  of  1818  by  the  re- 
spective governments,  which  might,  at  any  time,  rise  into  serious 
importance. 

The  two  chief  questions  are :  As  to  whether  the  expression  "three 
marine  miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  His  Bri- 
tannic IMajesty's  dominions"  should  i>e  taken  to  mean  a  limit  of  three 
miles  from  the  coast  line,  or  a  limit  of  three  miles  from  a  line  drawn 
from  headland  to  headland  ;  and  whether  the  proviso  that  "the  Ameri- 
can fishermen  shall  be  admitted  to  enter  such  bays  or  harbors  for  the 
purpose  of  shelter,  and  of  repairing  <lamage8  therein,  of  purchasing 
wood,  and  of  ol)taining  water,  and  for  no  other  purpose  whatever,  is 
intended  to  exclude  American  vessels  from  coming  inshore  to  traffic, 
transshi])  fish,  purchase  stores,  hire  seamen,  &c. 

Her  Majesty's  government  would  be  glad  to  learn  that  you  were  able 
to  arrive  at  a  conclusive  understanding  with  the  commissioners  of  the 
United  States  upon  the  disputed  interpretation  of  the  convention  of 
1818 ;  but  they  fear  that  you  will  find  it  expedient  that  a  settlement 
should  be  arrived  at  by  some  other  means,  in  whicli  case  they  will  be 
])repared  for  the  whole  question  of  the  relations  between  the  United 
States  and  the  British  possessions  in  North  America,  as  regards  the 
fisheries,  being  referred  for  consideration  and  inquiry  to  an  interna- 
tional commission,  on  which  two  commissioners,  to  be  hereafter  ap- 
pointed, in  consultation  with  the  government  of  the  Dominion,  should 
be  the  British  representatives. 

Should  the  (Tovernment  of  the  United  States  concur  in  this,  it  would 
be  advisable  that  no  time  should  Jje  lost  in  appointing  commissioners  on 
their  side,  and  in  the  commission  commencing  its  labors;  and,  as  it  is 
scarcely  probable  that  the  commissioners  will  be  able  to  report,  and  a 
treaty  be  framed,  before  the  commencement  of  the  next  fishing  season, 
it  would  be  also  desirable  that  you  should  agree  upon  some  means,  by 
license  or  otherwise,  by  which  disputes  may  be  avoided  in  the  mean- 
while. 


2.  Free  navigation  of  the  river  Saint  Lawrence  and  privilege  of  passing 

through  the  Canadian  canals. 


The  President  of  the  United  States,  in  bis  message  at  the  opening  of 
Congress  in  December  last,  referred  to  the  claim  of  free  navigation  of 
the  river  Saint  Lawrence  as  being  an  occasion  of  difierence  between  the 
two  countries. 

The  fourth  article  of  the  reci[)rocity  treaty  provided  that  the  citizens 
and  iidial)itants  of  the  United  States  should  be  allowed  to  navigate  the 
river.Saiut  Lawrence  and  the  canals  of  Canada ;  and  Her  Majesty's  gov- 


GENERAL    APPENDIX. 


37.' 


.) 


erntnont  tire  not  aware  that  any  pvuctic.al  «lilti(!ulty  as  to  tlie  free  navi- 
gation ot  the  iSaint  Lawrence  has  arisen  since  the  abrogation  of  that 
treaty. 

Tlie  exc-lnsive  right  to  the  navigation  of  the  Saint  Lawrence  was  main- 
tained by  this  conntry  tiironghont  the  dis(!ussions  between  the  two 
governments  on  the  subject  in  lSU4-'li7,  and  lias  been  airknowh^dged  as 
existing  by  this  article  of  the  reciprocity  treaty,  nnder  which  the  British 
government  retained  the  right  of  suspending  tlio  ))rivilege. 

Her  Majesty's  Government  are,  nevertiieless,  now  willing  to  admit  the 
principle  of  the  navigation  of  the  Saint  Lawrence  being  free  to  the  citi- 
zens of  the  United  States,  subject  to  such  tolls  and  regulations  as  may  be 
imposed  equally  on  British  subjects. 

This,  however,  cannot  extend,  except  as  a  special  privilege  to  the 
])assage  through  the  canals  constructed  by  (Janatlian  enterprise  through 
i3ritish  territory,  without  which,  from  the  strength  of  the  current  and 
dangerous  rapids,  the  navigation  of  the  Saint  Lawrence  cannot  be  prolit- 
ably  conducted ;  and  tlie  best  coui'se  will  luobably  be  found  to  be  to 
refer  these  questions  for  detailed  examiimtion  and  mutual  arrangement 
in  relation  to  the  transit  of  goods  in  bond  through  Maine,  Saint  John 
Kiver  lumber  trade,  navigation  of  Lake  Michigan,  passage  through  the 
canals  in  Uniled  States  territory,  and  other  similar  nmtters,  to  the 
commission  to  be  appointed  to  consider  and  report  upon  the  tisheries. 

5.  The  Manitoba  boundary. 

The  President  has  already  intimated  to  Congress  that  he  is  of  opinion 
that  the  survey  of  the  boundary  along  the  forty-ninth  parallel,  which 
has  only  been  carried  out  across  the  Uociky  Mountains  to  the  Gulf  of 
Georgia,  should  be  completed  from  the  Lake  of  the  Woods  to  the  foot 
of  the  Rocky  Mountains. 

In  this  Her  Majesty's  government  concur,  and  will  be  ready  to  ap- 
point a  (lomnrission  for  the  purpose  whenever  the  United  States  Govern- 
ment think  fit. 

5.  The  Alabaniaj  Shenandoah,  cCu,  claims. 

Under  this  head  are  comprised  the  claims  against  Great  Britain  for 
damages  sustained  by  the  depredations  of  the  Alabama,  Shenandoah,  and 
Georgia,  the  vessels  which  were  furnished  on  account  of  the  so  styled 
Confederate  States  and  armed  outside  of  British  jurisdiction,  and  of  the 
Florida,  which,  though  built  in  England,  was  armed  and  equipped  in 
the  port  of  Mobile. 

The  history  of  these  vessels  is  so  fully  explained  in  the  long  corre- 
spondence which  has  taken  place  with  regard  to  them,  that  it  is  unneces- 
sary for  me  now  to  do  more  than  point  out  that  the  claims  which  have 
been  preferred  on  account  of  the  Alabama  stand  on  a  ditterent  footing 
to  those  arising  from  the  captures  made  bj-  the  other  cruisers ;  in  so  far 
as  the  Alabama  escaped  from  Liverpool  after  evidence  had  been  sup- 
plied by  the  United  States  minister  of  the  service  for  which  she  was 
intended. 

Her  Majesty's  government  adhere  to  the  principle  of  arbitration  for 
the  settlement  of  these  claims,  which  was  recognized  and  adopted  in 
the  convention  signed  by  Lord  Clarendon  and  Mr.  Keverdy  Johnson  as 
being,  in  their  opinion,  the  most  appropriate  m  jde  of  settling  this  ques- 
tion ;  and,  should  arbitration  be  adopted,  Her  Majesty's  government 
would  concur,  if  the  United  States  Government  proposed  it,  in  jurists 


37G 


GENERAL    APPENDIX. 


'<  H 


I 


n  ' 


ti  li 


proporly  a«'leoteil  boiiifj  made  the  arbitnitoivs  instead  of  a  sovereign  or 
state,  iis  ptovided  in  tlj(^  lute  eoiiventioii. 

AUIi(>H}jli,  however,  Her  Msijesty'a  jjovernineiit  are  of  opiHioti  that 
arbitration  ia  the  most  ap|)rt)priato  mo(ie  of  settlement,  you  are  at  lib- 
erty to  transmit  for  their  eonsideration  any  otlier  proposal  which  may 
be  snftj>ested  for  determininj;  and  elosinjj;  the  (pieation  of  these  claims. 

For  the  escape  of  the  Alabama  and  conseipient  injury  to  the  coini'ierce 
of  the  United  States,  Her  Majesty's  jjovernment  authorize  you  to  express 
their  rej^rcit  in  such  terms  as  would  be  agreeable  to  the  Government  of 
the  United  States  and  not  inconsistent  with  the  |)oaiti()n  hitherto  nmiii- 
taine«l  by  Her  Mnjesty's  government  as  to  the  international  obligations 
of  neutral  nations. 

6.  The  San  Jnan  water-boundary. 

The  line  of  water-boundary  under  the  first  article  of  the  treaty  of 
Jane  1"),  1<S4(»,  upon  which  tlie  British  and  Anu'rican  comniissioneis 
ap])ointed  for  its  dennirkation  differed,  was  proimsed  by  Lord  Russell  as 
a  lit  subject  for  arbitriition  in  1<S5!> ;  but,  owing  to  the  civil  wur,  tlie 
negotiations  then  instituted  were  not  bioughtto  acon(;lusion,and  it  was 
not  until  the  14th  of  January,  ]<S(»0,  that  a  convention  was  signed  be- 
tween Lord  Clarendon  and  Mr.  Keverdy  Johnson  for  referring  the  mat- 
ter to  an  arbitrator;  the  president  of  the  Swiss  confederation  being 
sele(;ted  at  the  instance  of  the  Government  of  the  United  States. 

Although  this  (convention  was  recommen<led  by  the  Senate  Commit- 
tee on  Foreign  Aifairs  for  ratification,*  it  has  not  been  brought  before  the 
Senate,  and  the  period  within  which  its  ratification  should  have  taken 
place  has  now  expired. 

This  delay  has  been  accounted  for  by  the  United  States  Government 
as  having  been  occasioned  by  the  delay,  necessarily  unavoiilable,  in 
carrying  through  the  Imperial  Parliament  the  measures  re<piired  for 
enabling  the  naturalization  treaty  to  be  concluded  ;  the  two  treaties 
having  been  in  the  tirst  instance  included  in  the  same  negotiation  under 
tlie  protocol  of  the  lOth  of  November,  18ti8,  upon  which  the  treaty  of 
the  14th  of  January,  1800,  was  framed. 

The  naturalization  treaty  having  been  ratitied  some  months  ago.  Her 
Majesty's  government  trust  that  the  Government  of  the  United  States 
will  no  longer  hesitate  to  act  upon  the  water-bouiulary  treaty,  which 
sliould  in  that  case  be  api)ende<l  to  and  form  part  of  the  general  treaty 
for  the  mode  of  settlement  of  all  outstanding  diliereuces  which  you  are 
empowered  to  sign. 

Should,  however,  a  form  of  arbitration  admitting  of  more  free  discus- 
sion be  preferred,  Her  Majesty's  government  would  assent  to  such  a  pro- 
posal. 

7.  The  claims  of  British  subjects. 

Through  the  negotiations  on  the  x\labama,  Shenandoah,  &c.,  claims. 
Her  Majesty's  government  have  always  urged  that  any  satisfactory  set- 
tlement of  those  claims  must  be  accompanied  by  a  simultaneous  settle- 
ment of  the  claims  of  British  subjects  arising  out  of  the  civil  war,  and 
provision  was  made  for  this  purpose  in  the  claims  convention. 

Her  JMajesty's  government  would  expect  that  the  Government  of  the 
L^nited  States  would  readily  consent  to  all  claims  of  British  subjects 
against. the  United  States,  or  of  United  States  citizens  against  Great 

*  See  North  America,  No.  1 ,  (lti69,)  p.  44. 


^ 


GENERAL    APPENDIX. 


:\11 


reigii  or 


ion  that 
«  at  lib- 
lich  may 
claims, 
oinvunce 
I)  express 
II  men  t  of 
to  inaiii- 
iligatioiis 


treaty  of 
lissioners 
liissell  as 
war,  the 
iid  it  was 
ifjiied  be- 
:  the  mat- 
oil 
;es, 


being 


Commit- 
)efore  the 
ve   taken 

vernment 
i(hible,  in 
nired  for 
o  treaties 
ion  nmler 
treaty  of 


ago, 


ITer 

d  States 
y,  wliieh 
d  treaty 
you  are 

e  discns- 
ich  a  pro- 


.,  claims, 
tory  set- 
is  settle- 
svar,  and 

lit  of  the 
subjects 
St  Great 


Britain,  being  referred  to  a  mixed  commission,  formed  of  one  commis- 
sioner for  eacli  country  and  an  nini)ire,  as  was  done  under  the  conven- 
tion of  the  8th  of  February,  1853. 

8.  The  claims  of  thciwojile  of  Canada  on  account  of  the  Fenian  raidn. 

In  connection  with  the  claims  of  British  subjeirts  there  is  a  claim  on 
the  part  of  tiie  peoi)Io  of  the  Dominion  of  Canada  for  losses  in  life  and 
pro|)erty  and  ex|)enditure,  occasioned  by  the  tilibustering  raids  on  tlio 
Canadian  frontier,  carried  on  from  the  territory  of  the  Un  ted  States 
in  the  years  1800  and  1870. 

The  government  of  the  Dominion  having  solicited  Her  INIajesty's  gov- 
ernment to  bring  this  claim  before  the  Government  of  the  United  States, 
were  requested  some  time  ago  to  prepare  a  statement  to  be  submitted  to 
that  Government,  but  it  has  not  yet  been  received. 

In  the  meanwhile  the  accompanying  a(!coiiiit  of  the  Fenian  brother- 
hood, whicii  has  been  drawn  up  l»y  Lord  Tenterden,  will  supply  you  with 
full  infiaination  as  to  the  eiKiouragement  and  support  remlered  in  th«i 
United  States  to  this  and  other  Irish-American  revolutionary  societies. 

9.  Revision  of  rules  of  maritime  neutrality. 

It  would  be  desirable  to  take  this  opportunity  to  consider  whether  it 
might  not  be  the  interest  of  both  Great  Britain  and  the  United  States 
to  lay  down  certain  rules  of  international  comity  in  regard  to  the  obliga- 
tions of  maritime  neutrality,  not  only  to  be  acknowledged  for  observ- 
ance in  their  future  relations,  but  to  be  recommended  for  adoption  to  the 
otiier  maritime  powers. 

I  have  thus  touched  briefly  upon  the  subjects  likely,  principally,  to 
engage  your  attention,  and  have  indicated  the  manner  in  which  they 
may  be  possibly  treated ;  but  Her  Majesty's  government  wish  you  to 
understand  that  you  are  not  thereby  precluded  from  entertaining  the 
consideration  of  other  questions  or  making  any  suggestions  you  may 
think  pro]»er  for  their  settlement. 

Her  Majesty's  government  request,  however,  that  if  the  mode  of  deal- 
ing with  any  particuhir  matter  which  you  may  be  disposed  to  agree  to 
should  vary  materially  from  the  mannvr  of  settlement  to  which  1  have 
informed  you  Her  Alajesty's  government  are  prepared  at  once  to  assent, 
or,  in  case  of  any  disagreement  of  importance  occurring  between  your- 
selves and  the  American  High  Commissioners,  you  should  at  once  rei>ort 
by  telegrai)h,  and  await  further  instructions. 
1  am,  &c., 

GKANVILLE. 


^^o.  2. 
Earl  Granville  to  Her  Majestifs  High  Commissioners. 

Foreign  Office,  February  9, 1871. 

My  Lord  and  Gentlemen  :  With  reference  to  my  other  dispatch  of 
this  day's  date,  in  which  I  have  adverted  to  the  revision  of  the  rules 
of  maritime  neutrality  as  being  one  of  the  subjects  which  will  probably 
be  presented  for  your  consideration,  I  have  to  state  to  you  that  the 


'I 


378 


GENERAL    \PI»ENDIX. 


i-'< 


extent  to  which  a  iXMitnil  »!oimtry  may  be  hereafter  held  jiisHy  lialih'  for 
the  (lispateh,  after  notU^e,  of  a  vessel  under  similar  <!ir(!amstaiic«'s  to 
those  ill  the  easo  of  the  Alabama  eaiiiiot  he  pnuMsely  detiiieil  in  the 
]U'esent  staye  of  the  controversy  ;  but  there  are  other  points  in  which  it 
may  be  eonvenient  to  yon  to  be  informed  beforehand  that  this  govern- 
ment are  willing  to  enter  into  an  agreement. 

These  are — 

That  no  vessel  employed  in  the  military  or  naval  service  of  any  bel- 
ligerent wlii<!h  shall  iiave  been  equipped,  litted  out,  armed,  ordispat<*lu'd 
contrary  to  the  neutrality  of  neutral  state  should  be  admitted  into  any 
port  of  that  state. 

That  prizes  captured  by  8U(!h  vessels,  or  otherwise  captured  in  viola- 
tion of  the  neutrality  of  any  state,  shouhl,  if  brougiit  within  the  juris- 
diction of  that  state,  be  restored. 

That,  in  time  of  war,  no  vessel  should  be  recognized  as  a  ship  of  war, 
or  received  in  any  port  of  a  neutral  state  as  a  ship  of  war,  which  has 
not  been  commissioned  in  some  port  in  the  actual  occupation  of  the  gov- 
ernment by  whom  her  commission  is  issued. 

The  first  of  these  rules  has  been  incorporated  into  the  foreign-enlist- 
nieiit  a»!t,  passed  during  the  last  year,  and  both  the  first  and  second  were 
include<l  in  the  report  of  the  royal  commission  for  inquiring  into  the 
ueutitility  laws. 


I  am,  iS:c., 


GRANVILLE. 


>9 


No.  3. 
Ead  Granville  to  the  Lord  High  Commissioners. 

Foreign  Office,  February  0,  1871. 

My  Lord  and  Grntlemen  :  I  have  to  inform  you  that  Lord  Tenter- 
den  has  been  appointed  secretary  of  the  High  Commission,  and  will  pro- 
ceed to  Washingtou  accordingly. 
I  am,  «&c., 

GRANVILLE. 


V.-PROTiCOLS  OF  CONFERENCES  BETWEEN  THE  AMERICAN 

COMMISSIONERS  AND  THE  BRITISH  COMMISSIONERS, 

HELD  AT  WASHINGTON,  BETWEEN  FEB- 

RUARY  21  AND  MAY  0,  ISll 


\  ^ 


^ 


V.-PROTOCOLS  OF  CONFERENCES. 


I.— PROTOCOL  OF  CONFERENCE  BETWEEN, THE  HIGH  COMMISSIONERS  ON 
THK  TART  OF  THE  UNITED  STATKS  OF  AMERICA  AND  THE  HIGH  COM- 
MISSIONERS ON  THE  PART  OF  GREAT  I  RITAIN. 

Washington,  February  27, 1871. 
The  High  Commissioners  having  met,  their  full  powers  were  respect- 
ively produced,  which  were  fouud  sutisfiictory,  and  copies  thereof  ex- 
changed, as  follows :  " 

ULYSSES  S.  GRANT,  President  of  the  United  Staten  of  America,  to  all 
who  shall  see  these  presents,  greeting  : 

Know  ye  that,  reposing  special  trust  and  confidence  in  the  integrity 
and  ability  of  Hamilton  Fish,  Secretary  of  State ;  Robert  C.  Schenck, 
Envoy  Extraordinary  and  Minister  Plenipotentiary  to  Great  Britain  ; 
Samuel  Nelson,  an  Associate  Justice  of  the  Suprenib  Court  of  the 
United  States ;  Ebenezer  R.  Hoar,  of  Massachusetts,  and  George  H. 
Williams,  of  Oregon,  I  have  nominated  and,  by  and  with  the  advice  and 
consent  of  the  Senate,  do  appoint  them,  jointly  and  severally,  to  be  Com- 
missioners on  the  part  of  the  United  States,  in  a  Joint  High  Coinniis- 
siou  between  the  United  States  and  Great  Britain  ;  hereby  empowering 
them,  jointly  and  severally,  to  meet  the  Commissioners  appointed  or  to 
be  appointed  on  behalf  of  Her  Britannic  Majesty,  and  with  them  to  treat 
and  discuss  the  mode  of  settlement  of  the  different  questions  which 
shall  come  before  the  said  Joint  High  Commission,  and  the  said  office 
to  hold  and  exercise  during  the  pleasure  of  the  President  of  the  United 
States,  for  the  time  being. 

In  testimony  whereof  I  have  caused  these  letters  to  be  made  patent, 
and  the  seal  of  the  tTnited  States  to  be  hereunto  affixecl. 

Given  under  my  hand  at  the  city  of  Washington,  this  tenth  day  of 
February,  in  the  year  of  our  Lord  one  thousaiul  eight  huu- 

[SEAL.]  dred  and  seventy  one,  and  of  tlie  independence  of  the  United 
States  of  America  the  ninety -tifth. 

U.  S.  GRANT. 

By  the  President : 

Hamilton  Fish, 

Secretary  of  State. 

YICTORIA,  Reg.— Victoria,  by  the  Grace  of  God,  Queen  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  Defender  of  the  Faith,  ttc,  tOc, 
rfrc,  To  All  and  Singular  to  whom  these  Presents  sjiall  come,  Greeting! 

Whereas  for  the  puri)ose  of  discussing  in  a  friendly  spirit,  with  Com- 
missioners to  be  appointed  on  the  part  of  our  Good  Frieiuls  The  United 
States  of  America,  the  various  questions  on  which  differences  have 
arisen  between  Us  and  Our  said  Good  Friends,  and  of  treating  for  an 
Agreement  as  to  the  mode  of  their  amicable  settlum.ent,  We  iiave  judged 
it  expedient  to  invest  fit  persons  with  Full  Power  to  conduct  on  Our  Part 
the  discussions  in  this  behalf : — Know  Ye,  therefore,  thsit  We,  reposing 
especial  Trust  and  Coutidence  in  the  Wisdom,  Loyalty,  Diligence,  and 
Circumspection  of  Our  Right  Trusty  aud  Right  Well  beloved  Cousiu 


382 


GENERAL    APPENDIX. 


IS'.'.'  * 

hi 


>  ■ 
1  I 


If:      I 


.)\ 


M 


and  Councillor  (Tcorge  Frederick  Samuel  Earl  de  Grey  and  Earl  of  Ripou' 
Viscount  Goderich,  Baron  Grantham,  a  Baronet,  a  Peer  of  Our  United 
Kingdom,  President  of  our  Most  Honourable  Privy  Council*  Knight  of 
Our  Mt)st  Noble  Order  of  the  Garter,  «&c.,  &c. ;  of  Our  Right  Trusty  and 
Well-beloved  Councillor  Sir  Stafford  Henry  Xorthcote,  Baronei,  a  Mem- 
ber of  Parliament,  Companion  of  Our  Most  Honourable  Order  of  the  Bath, 
&c.,  &c. ;  of  Our  Trusty  and  Well-beloved  Sir  .Edward  Thornton,  Knight 
Commander  of  Our  Most  Honourable  Order  of  the  Bath,  Our  Envoy 
Extraordinary  and  Minister  Plenipotentiary  to  Our  Good  Friends  The 
United  States  of  America;  of  Our  Tmsty  and  Well-beloved  Sir  John 
Alexander  Macdonald,  Knight  Commander  of  Our  Most  Honourable 
Order  of  the  Bath,  a  Member  of  Our  Privy  Council  for  Canada,  and 
Minister  of  Justice  and  Attorney-General  of  our  ]3ominion  of  Canada; 
and  of  Our  Trusty  and  Well-beloved  Montague  Bernard,  Escpiire,  Chi- 
chele  Professor  of  International  Law  in  the  University  of  Oxford;  have 
named,  made,  constituted,  and  appointed,  as  We  «lo  by  these  Presents, 
name,  make,  constitute,  and  appoint  them  Our  undoubted  High  Com- 
missioners, Procurators,  and  Plenipotentiaries: — Giving  to  them,  or  to 
any  three  or  more  of  them,  all  manner  of  Power  and  Authority  to  treat, 
adjust,  and  cont'liide  with  such  Minister  or  Ministers  as  may  be  vested 
with  similar  Power  and  Authority  on  the  i)art  of  Our  Good  Friends  The 
United  States  of  America,  any  Treaties,  Con\entions,  or  Agreements 
that  may  tend  to  the  attainment  of  the  above-mentioned  end,  and  to 
sign  for  Us,  and  in  Our  Name,  everything  so  agreed  upon  and  concluded, 
and  to  do  and  transact  all  such  other  nnitters  as  may  appertain  to  the 
finishing  of  the  aforesaid  work  in  as  ample  manner  and  form,  and  with 
e(iual  force  and  efficacy,  as  We  Ourselves  could  do,  if  Personally  Prc'S- 
ent: — Engaging  and  Promising  upon  Our  Royal  Word,  that  whatever 
things  shall  be  so  transacted  and  concluded  by  Our  said  High  Commis- 
sioners, Procurators,  and  Plenipotentiaries,  shall  be  agreed  to,  acknowl- 
edged, and  accepted  by  Us  in  the  fullest  manner,  and  that  We  will  never 
suffer,  (dther  in  the  \yhole  o;*  in  part,  any  person  whatsoever  to  infringe 
the  same,  or  act  contrary  thereto,  as  far  as  it  lies  in  Our  Power. 

In  Witness  whereof  We  have  caused  the  Great  Seal  of  Our  United 
Kingdom  of  Great  Britain  and  Ireland  to  be  aflixed  to  these  Presents, 
which  We  have  signed  with  Our  Royal  Hand. 

Given  at  Our  Court  at  Windsor  Castle,  the  Sixteenth  day  of  February, 
in  the  year  of  Our  Lord  One  Thousand  Eight  Hundred  and  Seventy- 
One,  and  in  the  Thirty-Fourth  Year  of  our  Reign. 

It  was  proposed  by  the  British  High  Commissioners  that  Mr.  Fish, 
Secretary  of  State  of  the  United  States,  should  preside. 

The  United  States  Commissioner  stated  that,  although  appreciating 
the  proposal,  they  did  not  consider  it  necessary  that  a  i)resideut  shouhl 
be  named. 

The  Bigh  Commissioners,  on  the  suggestion  of  Mr.  Fish,  requested 
Lord  Tenterden,  Secretary  to  the  British  High  Commission,  and  Mr. 
Bancroft.  Davis,  Assistant  Secretary  of  State  of  the  United  States,  act- 
ing as  secretary  to  tlie  United  States  High  Commission,  to  undertake 
the  duties  of  joint  protocolists. 

The  High  Commissioners  then  agreed  that  the  subjects  for  discussion 
should  be  tho.^j  mentioned  in  the  following  correspondence  which  had 
taken  place  between  the  two  Governments. 


Ill: 

i 


GENERAL    APPENDIX. 


383 


of  Ripou' 
iir  United 
Knight  of 
rusty  and 
i,  a  Mein- 
tbeBath, 
n,  Kniglit 
nr  Envoy 
iends  The 
Sir  .Tolin 
ononrable 
nada,  and 
'  Canada; 
|uire,  Clii- 
L)rd ;  have 
Presents, 
ligh  Com- 
lieni,  or  to 
y  to  treat, 
be  vested 
ienda  The 
greenients 
nd,  and  to 
iou  eluded, 
tain  to  the 
,  and  with 
udly  Pres- 
whatever 
1  Comiuis- 
,  aclvuowl- 
will  never 
o  infringe 
er. 

iir  United 
Presents, 

February, 
Seventy- 
Mr.  Fish, 

preciating 
^nt  should 

requested 
,  and  Mr. 
tates,  act- 
undertake 

liscussiou 
vhiuh  had 


1.  Sir  Edicard  Thornton  to  Mr.  Fish. 

Washington,  e7<»«tm/7/ 20,  1871. 

Sir:  Tn  compliance  with  an  instruction  which  I  have  recreived  from 
Earl  (Iranville,  I  have  ihe  honor  to st;ite  that  Her  Majesty's Goveiiiment 
deem  it  of  importance  to  the  good  rehitions  which  they  are  ever  anxious 
shouhl  subsist  and  be  strengthened  between  the  United  States  and 
Great  Britain,  that  a  friendly  and  conii)lete  understanding  slionhl  be 
come  to  between  ti«e  two  Governments  as  to  tlie  extent  ot  the  rights 
which  belong  to  the  citizens  of  the  United  States  and  Her  I\Iajesty's 
subjects,  respectively,  witii  reference  to  the  fisheries  on  the  (toasts  of 
Her  Majesty's  possessions  in  North  America,  and  as  to  any  other  ques- 
tions between  them  which  affect  the  relations  of  the  United  States 
toward  those  possessions. 

As  the  consideration  of  these  matters  would,  however,  involve  investi- 
gations of  a  somewhat  complicated  nature,  and  as  it  is  very  desirable 
that  they  should  be  thoroughly  examined,  I  am  dire(;ted  by  Lord  Gran- 
ville to  [)ropose  to  the  Government  of  the  United  States  the  appoint- 
nu^ntof  a  Joint  High  Gommission,  which  shall  be  composed  of  members 
to  be  named  by  each  Government;  shall  hold  its  sessions  at  Washington, 
and  shall  treat  of  and  discuss  the  mode  of  settling  the  ditferent  (pies- 
tions  which  have  arisen  out  of  the  lisheries,  as  well  as  all  those  which 
affect  the  relations  of  the  United  States  toward  Her  Majesty's  posses- 
sions in  North  America. 

1  am  confident  that  this  proposal  will  be  met  by  your  Government  in 
the  same  cordial  spirit  of  friendship  which  has  induced  Her  Majesty's 
Government  to  tender  it,  and  I  cannot  doubt  that  in  that  case  the  rei^ilt 
will  not  fail  to  contribute  to  the  maintenance  of  the  good  relations  b*^- 
tween  the  two  countries,  which  I  am  couvince<l  the  Government  of  the 
United  States,  as  well  as  that  of  Her  Miijesty,  eipially  have  at  heart. 

I  have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  most 
obedient,  humble  servant, 

EDWAUD  THOllNTON. 

Hon.  Hamilton  Fish,  etc.,  ifcc. 


2.  Mr.  Fish  to  Sir  Edicard  Thornton. 

Department  of  State, 

Wanhington,  January  30,  1871. 

Sir  :  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of 
January  20,  in  which  you  inform  me,  in  compliance  witli  instructions 
from  Eiirl  Granville,  that  Her  Majesty's  Government  deem  it  of  import- 
ance to  the  good  relations  which  they  are  ever  anxions  shonld  subsist 
ami  be  strengthened  between  the  United  States  and  Great  Britain,  that 
a  friendly  and  complete  understanding  should  be  con)e  to  between  the 
two  (iovernments  as  to  the  (Extent  of  the  rights  which  belong  to  the 
citizens  of  the  United  States  and  Her  Majesty's  subjects,  respectively, 
with  reference  to  the  fisheries  on  the  coasts  of  Her  Majesty's  i)ossessions 
in  North  America,  and  as  to  any  other  questions  between  them  which 
affect  tlie  relations  of  the  United  States  toward  those  possesions;  and 
further,  that  as  the  consideration  of  these  (piestions  wouhl  involve 
investigations  of  a  somewhat  complicate«i  nature,  and  as  it  is  verj 
desirable  that  they  should  be  thoroughly  examined,  you  are  directed  by 


•'» 


J 


384 


GENERAL    APPENDIX. 


ffi 


-.1  ^ 

i 


Lord  Granville  to  propose  to  the  Government  of  the  United  States  the 
appointment  of  a  Joint  High  Commission,  which  shall  be  composed  of 
njembers  to  be  named  by  each  Government ;  shall  hold  its  sessions  at 
Washington,  and  shall  treat  of  and  discuss  the  mode  of  settling  the 
ditt'erent  questions  which  have  arisen  out  of  the  tisheries,  as  well  as  all 
those  which  attect  the  relations  of  the  United  States  toward  Her 
Majesty's  possessions  in  North  America. 

I  have  laid  your  note  before  the  President,  who  instructs  me  to  say 
that  he  shares  with  Her  Majesty's  Government  the  appreciation  of  the 
importance  of  a  friendly  and  complete  understanding  between  the  two 
Governments  with  reference  to  the  subjects  specially  snggested  for  the 
consid»>ratiou  of  the  proposed  Joint  High  Commission,  and  he  fully 
recognizes  the  friendly  spirit  which  has  prompted  the  proposal. 

The  President  is,  however,  of  the  opinion  that,  without  the  adjust- 
ment of  a  class  of  questions  not  alluded  to  in  your  note,  tlu^  i)roposed 
High  Commission  would  fail  to  establish  the  permanent  relations  and 
the  sincere,  substantial,  and  lasting  friendship  between  the  twoGovt'rn- 
ments  which,  in  common  with  Her  Majesty';;  Government,  he  desires 
should  prevail. 

He  thinks  that  the  removal  of  the  differences  which  arose  during  the 
rebellion  in  the  United  States,  and  which  have  existed  since  then,  grow- 
ing out  of  the  acts  committed  by  the  several  vessels  which  have  given 
rise  to  the  claims  generically  known  as  the  "Alabama"  claims,  will 
also  be  essential  to  the  restoration  of  cordial  and  amicable  relations 
between  the  two  Governments.  He  directs  me  to  say  that  should  Her 
Majesty's  Government  accept  this  view  of  the  matter,  and  assent  that 
this  subject  also  may  be  treated  of  by  the  proposed  High  Counnission, 
and  may  thus  be  put  in  the  way  of  a  final  and  amicable  settlement,  this 
Government  will,  with  much  pleasure,  appoint  High  Commissioners  on 
the  part  of  the  United  States,  to  meet  those  who  may  be  appointed  on 
behalf  of  Her  Majesty's  Government,  and  will  spare  no  efforts  to  secure, 
at  the  earliest  practical  moment,  a  just  and  amicable  arrangement  of 
all  the  questions  which  now  unfortunately  stand  in  the  way  of  an  entire 
and  abiding  friendship  between  the  two  nations. 

I  have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  obe- 
dient servant, 

HAMILTON  FISH. 

Sir  Edward  Thornton,  K.  C.  B.,  cC-c,  iCc,  d;c. 


3.  Sir  Edward  Thornton  to  Mr.  Fish. 


Washington,  February  1,  1871. 

Sir  :  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the 
30th  ultimo,  and  to  otter  you  my  sincere  and  cordial  thanks  for  the 
friendly  and  conciliatory  spirit  which  pervades  it. 

With  reference  to  that  part  of  it  in  which  you  state  that  the  President 
thinks  that  the  removal  of  the  differences  which  arose  during  the  rebel- 
lion in  the  United  States,  and  which  have  existed  since  then,  growing 
out  of  the  acts  committed  by  the  several  vessels  which  have  given  rise 
to  the  claims  generically  known  as  the  "Alabama*'  claims,  will  also  be 
essential  to  the  restoration  of  cordial  and  amicable  relations  between 
the  two  Governments,  I  have  the  honor  to  inform  you  that  I  have  sub- 
mitted to  Earl  Granville  the  opinion  thus  expressed  by  the  President  of 


GENERAL   APPENDIX. 


385 


o 


;ates  the 
|)().sod  of 
sioiis  at 
ling  the 
ill  as  all 
ird   Her 

le  to  say 
II  of  the 
the  two 
I  for  the 
he  fully 

i  adjnst- 
)ro[)08ed 
Otis  and 
Govcni- 
I  desires 

iring  the 
n,  grow- 
ve  given 
iui8,  will 
relations 
aid  Her 
ent  that 
[mission, 
ent,  this 
oners  on 
nted  on 
) secure, 
jnent  of 
n  entire 

our  obe- 

^ISH. 


1871. 

of  the 
for  the 


e 


resident 
e  rebel- 
>  rowing 
ven  rise 
also  be 
)etween 
ive  sub- 
ident  of 


the  United  States,  the  friendliness  of  which,  I  beg  you  to  believe,  I  fully 
appreciate. 

I  am  noAV  authorized  by  His  Lordship  to  state  that  it  would  give  Her 
Majesty's  Government  great  satisfaction  if  the  claims  commonly  known 
by  the  name  of  the  "  Alabama"  claims  were  submitted  to  the  considera- 
tion of  th»;  same  High  Commission  by  which  Her  ^lajesty's  Government 
have  pr«>posed  that  the  questions  relating  to  the  British  possessions  in 
North  America  should  be  discussed,  provided  that  all  other  claims,  both 
of  British  subjects  and  citizens  of  the  United  States,  arising  out  of  acts 
committed  during  the  recent  civil  war  in  this  country,  are  similarly  re- 
fL'rred  to  the  sanu'  Commission.  The  expressions  made  use  of  in  the  name 
of  the  President  in  your  above-mentioned  note,  with  regard  to  the  "Ala- 
bama" claims,  convince  me  that  the  Government  of  the  United  States 
will  consider  it  of  importance  that  these  causes  (»!' disputes  between  the 
two  countries  should  also,  and  at  the  same  time,  be  done  away  with,  and 
that  you  will  enable  me  to  convey  to  my  Government  the  assent  of  tlie 
President  to  the  addition  which  they  thus  propose  to  the  duties  of  the 
High  Commission,  and  which  cannot  tail  to  make  it  more  certain  that 
its  labors  will  lead  to  the  removal  of  all  differences  between  the  two 
counrries. 

I  have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  most 
obedient,  humble  servant, 

EDWARD  THOliXTOX. 

Hon.  HA3[ilton  Fish,  c&c,  tOc,  <tc. 


4.  ^1/;'.  Fiish  to  Sir  Edward  Thornton. 

Department  of  State, 

Washington,  February  3,  1871. 

Sir  :  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of 
the  1st  instant,  in  which  you  inform  me  that  you  are  authorized  by  Karl 
Granville  to  state  that  it  would  give  Her  Alajesty's  (ioveriiment  great 
saiisraction  if  the  claims  commonly  known  by  the  name  of  the ''Ala- 
bama claims"  were  submitted  to  the  consideration  of  the  same  High  Com- 
mission by  Avhich  Her  Majesty's  Government  have  proposed  that  the 
questions  relations  to  the  British  possessions  in  North  Ameiiea  should 
be  dis(!assed,  provided  that  all  other  claims,  both  of  British  subjects  and 
citizens  of  the  United  States,  arising  out  of  acts  committed  during  the 
reitent  civil  war  in  this  country,  are  similarly  referred  to  the  same  Com- 
n/    -on. 

1  have  laid  your  note  before  the  President,  and  he  has  directed  me 
to  express  the  satisfaction  with  which  he  has  received  the  intelligence 
that  Karl  Granville  has  authorized  you  to  state  that  Her  Majesty's  (iov- 
ernment  has  accepted  the  views  of  this  Government  as  to  the  disposition 
to  be  made  of  the  so-called  ''Alabama  claims." 

He  alf  o  directs  me  to  say,  with  reference  to  the  remaimler  of  your 
note,  that  if  there  be  other  and  further  claims  of  British  subejcts,  or  of 
American  citizens,  growing  out  of  acts  connnitted  during  the  recent  civil 
war  in  this  country,  he  assents  to  the  propriety  of  their  reference  to  the 
same  High  Conunission  ;  but  he  suggests  that  the  High  Commissiotiers 
shall  consider  only  such  claims  of  this  description  as  may  be  presented 

25  H 


386 


GENERAL   APPENDIX. 


l)y  the  Governments  of  the  respective  claimants  at  an  early  dnj',  to  he 
agreed  npon  by  the  Comniissioners. 

I  have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  obe 
dient  servant, 

HAMILTON  FISH. 

Sir  Edward  TnoRNTON,  K.  (J.  B.,  tfc-c,  tCx.,  c£c. 

The  Commissioners  fnrther  determined  tliat  the  discMission  might 
incUidc  snch  other  matters  as  might  be  nuitnally  agreed  npon. 

The  meeting  of  the  High  Commissioners  was  then  adjourned  to  the 
4th  of  March. 

J.  C.  BANCEOFT  DAVIS. 
TENTERDEN. 


F'l' 


II.— rROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OP  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  4, 1871. 

Tlie  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  27th  of  February  was  read  and  confirmed. 

At  the  {'ommenceinent  of  the  conference  the  United  States  High  Com- 
missioners called  attention  to  the  provision  in  the  Constitution  of  the 
United  States  by  which  the  advice  and  consent  of  the  Senate  is  required 
for  the  ratification  of  any  treaty  which  may  be  signed  under  the  author 
ity  of  the  President. 

The  British  High  Commissioners  stated  that  they  were  acquainted 
with  this  provision. 

The  High  Commissioners  then  proceeded  Avith  the  consideration  ot 
the  matters  referred  to  them. 

The  conference  was  adjourned  to  the  Gth  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


t  ♦ 


III.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  6, 1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  4th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  8th  of  March. 

J.  C.  BANCEOFT  DAVIS. 
TENTEEDEN. 


GENERAL    APPENDIX. 


387 


y  (lay,  to  he 
r,  your  ol)e 
m  FISH. 


ssion  might 
iriied  to  the 
'  DAVIS. 


IV.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THK  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COM.NHSSIONERS  ON  THE  PART  OF  GREAT  BRITAIX. 

Wasuington,  March  8,  1871. 
The  Hifih  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  Gth  of  March  was  read  and  contirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  9th  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


MISSIONERS 
THE    HIGH 


h  4,  1871. 
conference 

I  High  Com- 
ition  of  the 
!  is  required 
the  author 

ac<iuaiuted 

[deration  oi 

DAVIS. 


mSSIONERS 
THE  HIGH 


i  G,  1871. 
conference 

deration  of 
DAVIS. 


v.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  March  9,  1871. 

Tlie  High  Commissioners  having  met,  the  protocol  of  the  conference 
hehl  on  tlie  8th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  tliem. 
The  conference  was  adjourned  to  the  10th  of  March. 

J.  C.  UANCROFT  DAVIS. 
TENTEKDEN. 


VL— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  10, 1871. 

The  Higli  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  9th  of  March  was  read  and  coulirmed. 

The  High  Commissioners  then  i)roceeded  Avith  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  13th  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


VII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  March  13,  1871. 
The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  10th  of  March  was  read  and  cohflrmt  J. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  14th  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


388 


GENERAL   APPENDIX. 


VIII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
OF  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  14, 1871. 
The  High  Coinmissioners  having  met,  the  piotocol  of  the  eoufereuce 
hekl  on  the  13th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then   proceeded  with  the  consideration  ot 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  loth  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


hf 


IX.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  15, 1871. 
The  High  Commissioners  liaving  met,  the  protocol  of  the  conference 
hekl  on  the  14th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
Tlie  conference  was  adjourned  to  the  ICth  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


X.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONEPS  ON 
THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH  .;0M- 
MISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  March  16,  1871. 
The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  loth  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  17th  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


XL— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  17, 1871. 
The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  10th  of  March  v^as  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  18th  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


GENERAL   APPENDIX. 


389 


[SSIOXERS 
HE    HIGH 

4,  1871. 
oufereuce 

eration  ot 
)AYIS. 


XII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  C0MMI<5SIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  18,  1871. 

The  nij?h  Conimissionera  having  met,  the  protocol  of  the  conference 
hehl  on  the  17th  of  Marcli  was  read  and  confirmed. 

The  Higli  Commissioners  then  proceeded  with  the  consideration  of  the 
matters  referred  to  them. 
Tlie  conference  was  adjourned  to  the  20th  of  Marcli. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDIiJN. 


SSIONERS 
'HE   HIGH 

5,  1871. 
onference 

(ration  of 
)AVIS. 


Xin— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  Sl'ATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  March  20,  1871. 
The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  18th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  22d  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


)NET^S  ON 
IGH  .  :0M- 

5,  1871. 
)uference 

ration  of 


AVIS. 


XIV.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  March  22,  1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  20th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  23d  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


3SI0NERS 
3E    HIGH 

,  1871. 
mference 

ration  of 
AVIS. 


XV.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  March  23,  1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  22d  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  25th  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


4  . 

0 


390 


GENERAL   APPENDIX. 


XVI.-PROTOCOL  OF  CONFEllENCE  BETWEEN  THE  HIGH  COMMISSIONEKS 
ON  TinO  PAKT  OF  THE  UNITED  STATFS  OF  AMEHICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  25, 1871. 
The  High  Commissioners  liaving  met,  tlie  protocol  of  the  confereiKio 
held  on  the  23d  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  27th  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


XVII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THK  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  March  27, 1871. 

The  High  Commissioners  having  met,  the  protocol  of  tlie  conference 
held  on  the  25th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  30tli  of  March. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


XVIII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  pi'lTAIN. 

WASHINGTON,  3larch  30,  1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  27th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  3d  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


W\ 


iti 


XIX.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  3, 1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  30th  of  March  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of  the 
matters  referred  to  them. 
The  conference  was  adjourned  to  the  5th  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


GENERAL   APPENDIX. 


391 


SSIONERS 
'J IE  HIUII 

>,  1871. 
)nfeience 

ration  of 


AVIS. 


XX.— PROTOCOL  OP  CONFEREX(JE  IJETWKEN  THE  IIKJII  CO.MMISSIOMCRS 
ON  THE  PART  OF  THE  UNITKD  STATKS  OP  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  IJRITAIN. 

Washington,  April  5, 1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  couforeneo 
hehl  on  the  3(1  of  April  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  tlie  consideration  of  tlio 
matters  referred  to  them. 
The  conference  was  adjourned  to  the  Gth  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


5SIONER8 
HE  HIGH 

,  1871. 
uference 

ration  of 


AVIS. 


XXI— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
Ox  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  April  6, 1S71. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  5tli  of  April  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of  the 
matters  referred  to  them. 
Tlie  (!onference  was  adjourned  to  the  8th  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


SIGNERS 
IE  HIGH 

1871. 
I  fere  nee 

at  ion  of 
^VIS. 


XXII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  April  8,  1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  Gth  of  April  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of  the 
matters  referred  to  them. 
The  conference  was  adjourned  to  the  10th  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


=iIONERS 
IE  HIGH 

1871. 

iference 
n  of  the 

VIS. 


XXIII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSION- 
ERS ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE 
HIGH  COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  10, 1 871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  8th  of  April  was  read  and  conflrned. 

The  High  Commissioners  then  proceeded  with  the  consideration  of  the 
matters  referred  to  them. 
The  conference  was  adjourned  to  the  12th  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEi^^. 


392 


GENERAL    APPENDIX. 


XXrV.— PROTOCOL  or  CONKEUENCE  HETWEEN  the  HKJIT  C0M>fISSIOX- 
ER.S  0\  THE  PART  OF  THE  UNITED  STATER  OF  AMERICA  AND  THE 
HKiH  COMMISSIONERS  ON  THE  PART  OF  GREAT  IJRITAIN. 

Washington,  April  12, 1.S71. 

Tlie  High  ComrnissiDners  having  met,  the  i)rotocol  of  the  conference 
held  on  the  lOtli  of  AjH'il  wna  read  and  contirnied. 

Tlie  High  ConiniissicmorH  then  proceeded  with  the  consideration  of  tl»e 
nintters  referred  to  tliem. 
The  conference  was  adjourned  to  the  13th  of  April. 

J.  0.  liANCKOFT  DAVIS. 
TENTEIIDEN. 


XXV.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
OX  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH  COM- 
MISSIONERS ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  13, 1871. 

The  High  Coinmissioners  having  met,  the  i)rotocol  of  the  conference 
held  on  the  llith  of  April  was  read  and  confirmed. 

The  High  Coinmissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  14th  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTEliDEN. 


w 


XXVI.— PROTOCOL  OF  CONFERENCE  liETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH  COM- 
MISSIONERS ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  14,  1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  13th  of  April  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  15th  of  April. 

J.  C.  BANCllOFT  DAVIS. 
TENTERDEN. 


l^'t 


XXVII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH  COM- 
MISSIONERS ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  15, 1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  14th  of  April  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  nuitters  referred  to  them. 
The  conference  was  adjourned  to  the  17th  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENDERDEN. 


^ 


GENERAL   APPENDIX. 


303 


XXVIir.— PRf>TOt;OL  OF  CONFERENCE  HETWEEN  THE  IIFCill  COMMISSION- 
ERS ON  THE  PART  OF  THE  IIXITEI)  STATES  OF  AMERICA  AND  THE 
lllUH  COMMISSIONERS  ON  THE  PART  OF  0RI:AT  URITAIN. 

Washington,  April  17, 1871. 

The  High  rommisaioners  liavinp  met,  the  i)rotocol  of  the  conference 
hfcld  on  the  loth  of  April  was  read  and  conttrnied. 

The  Hifih  Conunisaioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  theni. 
The  conference  was  adjourned  to  the  ISth  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTEUDEX. 


^tK 


XXIX.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIC.H  COMMISSION- 
ElfS  ON  THE  PART  OF  THE  L'NITED  STATES  OF  AMERICA  AND  THE 
HIGH  COMMISSIONERS  ON  THE  PART  OF  GREAT  URITAIN. 

Washington,  April  18, 1871. 

The  nigh  Conimiasioners  having  met,  the  protocol  of  the  conference 
hehl  on  tlie  17tli  of  April  was  read  and  conllrmed. 

The  High  (Joniinissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  10th  of  April. 

J.  C.  BANCIIOFT  DAVIS. 
TENT  .IIDEN. 


I 


XXX.— ruOTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PAR'I'  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  19, 1871. 

The  High  Commissioners  liaving  met,  the  protocol  of  the  conference 
held  on  the  18th  of  April  was  read  and  confirmed. 

The  High  Connuissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  22d  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


XXXI.— PROTOCOL  OP  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
.COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  22, 1871. 
The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  10th  of  April  was  read  and  confirmed. 

The  High  Commissionei     then  proceeded  with  the  consideration  of 
the  matters  referred  to  ther  . 
The  confereuce  was  adjourned  to  the  24th  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTERDEN. 


394 


GENERAL   APPENDIX. 


XXXII.— PKOTOCOL  OF  CONFERENCE  IJETWEEN  THE  HIGH  COMMISSIOXIJRS 
ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASinNGTON,  April  li4,  1871. 
The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  22d  of  April  was  read  and  coutirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  25th  of  A]>ril. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


m 


I 


XXXIII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSION- 
ERS ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  April  25,  2871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  24th  of  April  was  read  and  conflrmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  them. 
The  conference  was  adjourned  to  the  2Gth  of  April. 

J.  C.  BANCROFT  DAVIS. 
TENTEKDEN. 


XXXIV.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSION- 
ERS ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE 
HIGH  COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  April  26,  1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
hehl  on  the  25th  of  April  was  read  and  contiriued. 

The  High  Commissioners  then  proceeded  with  the  consideration  of  the 
matters  referred  to  them. 
The  conference  was  adjourned  to  the  3d  of  May. 

J.  C.  BANCROFT  DAVIS. 
TENDERDEN. 


1 


XXXV.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSION- 
ERS ON  THE  PART  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE 
HIGH  COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

Washington,  May  3, 1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  25th  of  April  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of  the 
matters  referred  to  them. 

The  American  Commissioners  produced  the  following  further  full 
power,  under  the  seal  of  the  United  States,  authorizing  them  to  con- 
clude aud  sign  a  treaty : 


ISIOXHRS 
HE  HIGH 

,  1871. 
ut'ereuce 

ration  of 


iYIS. 


MISSION- 
HE  HIGH 

1,  2871. 
ufeience 

ration  of 


WIS. 


MISSION- 
.ND  THE 

1871. 
ufeience 

on  of  the 
WIS. 


MISSION- 
ND  THE 

1871. 

nference 

m  of tbo 

her  full 
to  cou- 


GENEBAL   APPENDIX. 


395 


ULYSSES  S.  GYANT,  President  of  the  United  States  of  America,  to  all 
to  whom  these  itreseiiis  shall  come^  greeting  : 

Know  ye  that  whereas,  by  my  power  bearing  date  the  10th  day  of 
February  last,  Hamilton  Fish,  Secretary  of  State,  llobert  C.  Schenck, 
Envoy  Extraordinary  and  Minister  Plenipotentiary  to  Groat  liricain, 
Samuel  Nelson,  an  Associate  Justice  of  the  Snpreuie  Court  of  the 
United  States,  Ebenezer  R.  Hoar,  of  Massachusetts,  and  George  II. 
Williams,  of  Oregon,  were  authorized  to  meet  the  commissioners  ap- 
pointed, or  to  be  appointed,  on  behalf  of  Her  Britannic  jNInjesty,  and 
with  them  to  treat  and  discuss  the  mode  of  settlement  of  the  ditterent 
questions  which  should  come  before  them  ; 

And  whereas  that  meeting  and  discussion  have  taken,  place,  and  the 
said  mode  of  settlement  has  been  agreed  upon  : 

Now,  therefore,  I,  Ulysses  S.  Grant,  President  of  the  United  States, 
do  hereby  appoint  the  said  Hamilton  Fish,  Robert  0.  Schenck,  Samuel 
Nelson,  Ebenezer  R.  Hoar,  and  George  H.  Williams,  jointly  and  sev- 
erally, Plenipotentiaries  for  and  in  behalf  of  the  United  States,  and  do 
authorize  them,  and  any  or  either  of  them,  to  conclude  and  sign  any 
treaty  or  treaties  touching  the  premises,  for  the  final  ratification  of  the 
President  of  the  United  States,  by  and  with  the  advice  and  conseut  of 
the  Senate,  if  such  advice  and  con.^ent  be  given. 

In  witness  whereof  I  have  caused  the  seal  of  the  United  States  to  bo 
hereunto  affixed. 

Given  under  my  hand  at  the  city  of  Washington,  the  second 
r  1    day  of  Maj",  in  the  year  of  our  Lord  one  thousand  eight  hnn- 

^         *J    dred  and  seventy-one,  and  of  the  Independence  of  the  United 
States  of  America  the  ninety  fifth. 

U.  S.  GRANT. 

By  the  President : 

Hamilton  Fish, 
Secretary  of  State. 

This  full  Power  w^as  examined  by  the  British  Commissioners  and 
found  satisfjictory. 

The  Joint  High  Commissioners  determined  that  they  would  embody 
in  a  protocol  a  statement  containii»->  an  account  of  the  lU'gotiations 
upon  the  various  subjects  included  in  the  Treaty,  and  they  instructe«l 
the  Joint  Protocol ists  to  prepare  such  an  account  in  the  order  in  which 
the  subjects  are  to  stand  in  the  Treaty. 

The  conference  was  adjourned  to  the  4th  of  May. 

J.  C.  BANCROFT  DAYIS. 
TENTERDEN. 


XXXVI.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSIONERS 
ON  THE  PAP.T  OF  THE  UNITED  STATES  OF  AMERICA  AND  THE  HIGH 
COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

WASHINGTON,  May  4, 1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  3d  of  May  was  read  and  confirmed. 

The  High  Commissioners  then  proceeded  with  the  consideration  of 
the  matters  referred  to  thetu. 


i 


■ 


_J 


396 


GENERAL    APPENDIX. 


Tho  Statetiient  prepared  by  the  Joint  Protocolists,  in  accordance  with 
the  ie<iue.st  of  the  Joint  High  Commissioners  at  the  last  conference,  \>as 
then  read  as  follows  : 

STATEMENTS. 

Articles  I  to  XI. 


w 

Mi 

ml 


i' 


i 


At  the  conference  held  on  the  eighth  of  March  the  American  Commis- 
sioners state<l  that  the  people  and  Government  of  the  United  States  felt 
that  they  had  sustained  a  great  wrong,  and  that  great  injuries  and  losses 
were  inflicted  upon  their  commerce  and  their  material  interests  by  the 
course  and  conduct  of  Great  Britain  during  the  recent  rebellion  in  the 
United  States ;  that  what  had  occurred  in  Great  Britain  and  her  col- 
onies during  that  period  had  given  rise  to  feelings  in  the  United  States 
which  the  people  of  the  United  States  did  not  desire  to  cherish  to- 
ward Great  Britain ;  that  the  history  of  the  Alabama  and  other  cruisers 
which  had  been  fitted  out,  or  armed,  or  equipped,  or  which  had  received 
augmentation  of  force  in  Great  Britain  or  in  her  colonies,  and  of  the 
operations  of  those  vessels,  showed  extensive  direct  losses  in  the  cap- 
ture and  destruction  of  a  large  number  of  vessels  with  their  cargoes,  and 
in  the  heavy  national  expenditures  in  the  pursuit  of  the  cruisers,  and 
indirect  injury  in  the  transfer  of  a  large  part  of  the  American  commercial 
marine  to  the  British  flag,  in  the  enhanced  payments  of  insurance,  in 
the  prolongation  of  the  war,  and  in  the  addition  of  a  large  sum  to  the 
cost  of  the  Avar  and  the  suppression  of  the  rebellion;  and  also  showed 
that  Great  Britain,  by  reason  of  failure  in  the  proper  observance  of  her 
duties  as  a  neutral,  had  become  justlj'  liable  for  the  acts  of  those  cruisers 
and  of  their  tenders ;  that  the  claims  for  the  loss  and  destruction  of  pri- 
vate property  which  had  thus  far  been  presented  amounted  to  about 
fourteen  millions  of  dollars,  without  intere:it,  Avhich  amount  was  liable 
to  be  greatly  increased  by  claims  which  had  not  been  present«^d ;  that 
the  cost  to  which  the  Government  had  been  pu*  _n  the  pursuit  of  cruis- 
ers could  easily  be  ascertained  by  certificates  of  Government  account- 
ing otlicers;  that  in  the  hope  of  an  amicable  settlement  no  estimate  was 
made  of  the  indirect  losses,  without  prejudice,  however,  to  the  right  to 
indemnification  on  their  account  in  the  event  of  no  such  settlement  being 
made. 

The  American  Comraissioneis  further  stated  that  they  hoped  that  the 
British  Commissioners  would  be  able  to  place  upon  record  an  expression 
of  regret  by  ller  Majesty's  Government  for  the  depredations  committed 
by  the  vessels  whose  a^ts  were  now  under  discussion.  They  also  pro- 
posed that  the  Joint  High  Commission  should  agree  upon  a  sum  which 
should  be  i)aid  by  Great  Britain  to  the  United  States,  in  satisfaction  of 
all  the  claims  and  the  interest  thereon. 

The  British  Commissioners  replied  that  Her  Majesty's  Government 
could  not  admit  that  Great  Britain  had  failed  to  discharge  toward  the 
United  States  the  duties  imposed  ou  her  by  the  rules  of  International 
Ivaw,  or  that  she  was  justly  liable  to  m.ake  good  to  the  United  States  the 
losses  occasioned  by  the  acts  of  the  cruisers  to  which  the  American 
Commissioners  had  referred.  They  remir.ded  the  American  Commis- 
sioners that  several  vessels,  suspected  of  being  designed  to  cruise  against 
the  United  States,  including  two  ironclads,  had  been  arrested  or  de- 
tained by  the  British  Government,  and  that  that  Government  had  in 
some  instances  not  confined  itself  to  the  discharge  of  international  obli- 
gations, however  widely  construed,  as,  for  instance,  when  it  acquired  at 


GENERAL   APPENDIX. 


397 


nee  with 
!iice,  \>as 


Commls- 
tates  felt 
lul  losses 
ts  by  the 
)n  ill  the 
I  her  col- 
id  States 
lerish  to- 
V  cruisers 
received 
id  of  the 
the  cap- 
goes,  and 
isers,  and 
inrnercial 
irance,  iu 
nn  to  the 
0  showed 
ice  of  her 
e  cruisers 
on  of  pri- 
to  about 
as  liable 
tt^d ;  that 
of  cruis- 
account- 
inate  was 
a  right  to 
eut  being 

that  the 
xprossion 
jiiimitted 
also  pro- 
iin  wliicli 

action  of 

eminent 
kvard  the 
national 
tates  the 
American 
Coinmis- 
e  against 
id  or  de- 
it  had  in 
nal  obli- 
juired  at 


a  great  cost  to  the  country  the  control  of  the  Anglo-Cliinese  Flotilla, 
which,  it  was  apprehended,  might  be  used  against  the  United  States. 

They  added  that  although  Great  Britain  had,  from  the  beginning,  dis- 
avowed any  responsibility  for  the  acts  of  the  Ahibania  and  the  other 
vessels,  she  had  already  show  n  her  willingness,  for  the  sake  of  the  main- 
tenance ot  friendly  relations  with  the  United  States,  to  adopt  the  prin- 
ciple of  arbitration,  provided  that  a  fitting  Arbitrator  could  be  found, 
and  that  an  agreement  could  be  come  to  as  to  the  points  to  which  arbi- 
tration should  apply.  Tliey  would,  therefore,  abstain  from  replying  iu 
detail  to  thestatemeutof  the  American  Commissioners,  in  the  ho[)e  that 
the  necessity  for  entering  upon  a  lengthened  controversy  might  be  ob- 
viated by  the  adoption  of  so  fair  a  mode  of  settlement  as  that  wliich  they 
were  instructed  to  propose;  and  they  had  now  to  repeat,  on  behalf  of 
their  Government,  the  otter  of  arbitration. 

The  American  Commissioners  expressed  their  regret  at  this  decision 
of  the  British  Commissioners,  and  said  further  that  they  could  not  con- 
sent to  submit  the  question  of  the  liability  of  Her  Majesty's  CJovern- 
meiit  to  arbitration  unless  the  princii)les  which  should  govoru  the  Arbi- 
trator iu  the  consideration  of  the  fa(!ts  could  be  lirst  agreed  upon. 

The  British  Connnissioners  replied  that  they  had  no  authority  to 
agree  to  a  submission  of  these  claims  to  an  Arbitrator  with  insi  ructions 
as  to  the  principles  which  should  govern  him  iu  the  consideiation  of 
them.  They  said  tha^.  they  should  be  willing  to  consider  what  princi 
pies  should  be  adopted  for  observance  in  future;  but  that  they  were  of 
opinion  that  the  best  mode  of  conducting  an  arbitration  was  to  submit 
the  facts  to  the  Arbitrator,  and  leave  him  free  to  decide  upon  tliem  after 
hearing  such  arguments  as  might  be  necessary. 

The  American  Commissioners  replied  that  they  were  willing  to  con- 
sider what  principles  should  be  laid  down  for  observance  in  siiiiihir  cases 
in  future,  with  the  understanding  that  any  principles  that  siiould  be 
agreed  upon  should  be  held  to  be  applicable  to  the  facts  in  respect  to 
the  Alabama  Claims. 

The  British  Commissioners  replied  that  they  could  not  admit  that 
there  had  been  any  violation  of  existing  principles  of  International  Law, 
and  that  their  instructions  did  not  authorize  them  to  accede  to  a  i)ro- 
posal  for  laying  down  rules  for  the  guidance  of  the  Arbitrator,  but  that 
they  would  make  known  totheirGovernment  the  views  of  the  American 
Commissioners  on  the  subject. 

At  the  respective  conferences  on  March  9,  March  10,  March  13,  and 
March  14,  the  Joint  High  Commission  considered  the  form  of  the  de- 
claration of  principles  or  rules  which  the  American  Commissioners  «le- 
sired  to  see  adojited  for  the  instruction  of  the  Arbitrator  and  laid  down 
for  observance  by  the  two  Governments  iu  future. 

At  the  ch)se  of  the  conference  of  the  14tli  of  JMarch  the  British  Com- 
missioners reserved  several  questions  for  the  consideration  ot  their  Gov- 
ernment. 

At  the  conference  on  the  5th  of  April  the  British  Commissioners 
stated  that  they  were  instructed  by  Her  Majesty's  Government  to  de- 
clare that  Her  Majesty's  Government  could  not  assent  to  the  pioposed 
rules  as  a  statement  of  principles  of  Interi»atioiial  Law  which  were  in 
force  at  the  time  when  the  Alabama  Claims  arose,  but  tliat  Her  Ma- 
jesty's Government,  iu  order  to  evince  its  desire  of  strengthening  the 
friendly  relations  between  the  two  countries  and  of  making  satisfactory 
provision  for  the  future,  agreed  that  in  deciding  the  questions  between 
the  two  countries  arising  out  of  those  claims,  the  Arbitrator  should 
assume  that  Her  Mjyesty's  Government  had  undertaken  to  act  upon  the 


I 


l:«' 


if 


398 


GENERAL   APPENDIX. 


t: 


principles  set  fortli  in  the  rules  which  the  American  Commissiouers  had 
proposed,  viz : 

That  a  neutral  Government  is  bound,  first,  to  use  due  diligence  to  pre- 
vent the  fitting  out,  arming,  or  equipping,  with'n  its  jurisdiction,  of  any 
vessel  which  it  has  reasonable  ground  to  believe  is  intended  to  cruise  or 
carry  on  war  against  a  power  with  which  it  is  at  peace;  and  also  to  use 
like  diligence  to  prevent  the  departure  from  its  jurisdiction  of  any  vessel 
intended  to  cruise  or  carry  on  war  as  above,  such  vessel  having  been 
specially  adapted,  in  whole  or  in  part,  within  such  jurisdiction,  to  warlike 
use. 

Secondly.  Not  to  permit  or  suffer  either  belligerent  to  make  use  of 
it  i  ports  or  waters  as  the  base  of  naval  operations  against  the  other,  or 
for  the  purpose  of  the  renewal  or  augmentation  of  military  supplies  or 
arms,  or  the  recruitment  of  men. 

Thirdly.  To  exercise  due  diligence  in  its  own  ports  or  waters,  and  as 
to  all  persons  within  its  jurisdiction,  to  prevent  any  violation  of  the 
foregoing  obligations  and  duties. 

It  being  a  condition  of  this  undertaking,  that  these  obligations  should 
in  future  be  held  to  be  binding  internationally  between  the  two  coun- 
tries. 

It  was  also  settled  that  in  deciding  the  matters  submitted  to  him  the 
Arbitrator  should  be  governed  by  the  foregoing  rules,  which  had  been 
agreed  upon  as  rules  to  be  taken  as  applicable  to  the  case,  and  by  such 
principles  of  International  Law,  not  inconsistent  therewith,  as  the  Arbi- 
trator should  determine  to  have  been  applicable  to  the  case. 

The  Joint  High  Commission  then  proceeded  to  consider  the  form  of 
submission  and  the  manner  of  constituting  a  tribunal  of  arbitration. 

At  the  conferences  on  the  Gth,  8th,  Oth,  10th,  and  12th  of  April  the 
Joint  High  Commission  considered  and  discussed  the  form  of  submis- 
sion, the  manner  of  the  award,  and  the  mode  of  selecting  the  Arbitra- 
tors. 

The  American  Commissioners,  referring  to  the  hope  which  they  had 
expressed  on  the  8th  of  March,  inquired  whether  the  British  Commis- 
sioners were  prepared  to  i)lace  upou  record  an  expression  of  regret  by 
Her  Majesty's  Government  for  the  depredations  committed  by  the  ves- 
sels whose  acts  were  now  under  discussion;  and  the  British  Commis- 
sioners replied  that  they  were  authorized  to  express,  in  a  friendly  sjurit, 
the  regret  felt  by  Her  Majesty's  Government  for  the  escape,  under  what- 
ever (drcumstances,  of  the  Alabama  and  other  vessels  from  British 
ports,  and  for  the  depredations  committed  by  those  vessels. 

The  American  Commissioners  accepted  this  expression  of  regret  as 
very  satisfactory  to  them  and  as  a  token  of  kindness,  and  said  that  thej^ 
i'elt  sure  it  would  be  so  received  by  the  Government  and  people  of  the 
United  States. 

In  the  conference  on  the  13th  of  April  the  Treaty  Articles  I  to  XI 
were  agreed  to. 

Articles  XII  to  XVII. 


m 

m 


At  the  conference  on  the  4th  of  March  it  was  agreed  to  consider  the 
subjects  referred  to  the  Joint  High  Commission  by  the  respective  Gov- 
ern ujeuts  in  the  order  in  which  they  api)eared  in  the  correspondence 
between  Sir  Edward  Thornton  and  Mr.  Fish,  and  to  defer  the  considera- 
tion of  the  adjustment  of  "all  other  claims,  both  of 'British  subjects  and 
citizens  of  the  United  States,  arising  out  of  acts  committed  during  the 
rtcent  civil  war  in  this  country,"  as  described  by  Sir  Edward  Thornton 


uers  had 

;e  to  pre- 
n,  of  any 
cruise  or 
[so  to  use 
ny  vessel 
iug  been 
o  warlike 

ke  use  of 

other,  or 

ipplies  or 

s,  and  as 
on  of  the 

ins  should 
:wo  couu- 

o  him  the 
had  beeu 
d  by  such 
the  Arbi- 

e  for  III  of 

■ation. 

April  the 

f  subinis- 

Arbitra- 

they  had 
Com  mis- 
egret  by 

y  the  ves- 
Commis- 

dly  spirit, 
der  what- 

tu  British 

regret  as 
that  they 
pie  of  the 

5S  I  to  XI 


GENERAL   APPENDIX. 


309 


Qsider  the 
tive  Gov- 
jpoudeuce 
considera- 
^  cts  and 
uring  the 
Thoruton 


in  his  letter  of  Febrnnry  1,  until  the  subjects  referred  to  in  the  p  evious 
letters  should  have  been  disposed  of. 

Tlie  American  Commissioners  said  that  they  sup])osed  that  thej*  were 
right  in  tlieir  opinion  that  British  laws  prohibit  British  subjects  from 
owning  slaves ;  they  therefore  inquired  whether  any  claims  for  slaves,  or 
for  alleged  i)roperty  or  interest  in  slaves,  can  or  will  be  presented  by 
the  ]>ritish  Government,  or  in  behalf  of  any  British  subject,  under  the 
Treaty  now  being  negotiated,  if  there  be  in  the  Treaty  no  express  words 
excluding  such  claims. 

The  British  Commissioners  replied  that  by  the  law  of  England  Brit- 
ish subjects  had  long  been  prohibited  from  purchasing  or  dealing  iu 
slaves^,  not  only  within  the  dominions  of  the  British  Crown  but  in  any 
foreign  country ;  and  that  they  had  no  hesitation  in  saying  that  no  claim 
on  behalf  of  any  British  subject,  for  slaves  or  for  any  property  or  inter- 
est in  slaves,  would  be  presented  by  the  British  Government. 

Referring  to  the  paragraph  in  Sir  Edward  Thornton's  letter  of  Janu- 
ary liO,  relating  to  "  the  mode  of  settling  the  ditt'erent  questions  which 
have  arisen  out  of  the  Fisheries,  as  well  as  all  those  which  allect  the 
relations  of  the  United  States  towards  Her  Majesty's  Possessions  in 
North  America,"  the  British  Commissioners  proposed  that  the  Joint  High 
Commission  should  consider  the  claims  for  injuries  which  the  people  of 
Canada  had  sntfered  from  what  Avere  known  as  the  Fenian  raids. 

The  American  Commissioners  objected  to  this,  and  it  was  agreed  that 
the  subject  might  be  brought  np  again  by  the  British  Commissioners  in 
connection  with  the  subject  referred  to  bj'  Sir  Edward  Thornton  in  his 
letter  of  February  1 . 

At  the  conference  on  the  14th  of  April  the  Joint  High  Commission 
took  into  consideration  the  subjects  mentioned  by  Sir  Edward  Thornton 
iu  that  letter. 

The  British  Commissioners  proposed  that  a  Commission  for  the  con- 
sideration of  these  claims  should  be  .appointed,  and  that  the  Convention 
of  1853  should  be  followed  as  a  precedent.  Tliis  was  agreed  to,  except 
that  it  was  settled  that  there  should  be  a  third  Commissioner  instead  of 
an  Umpire. 

At  the  conference  on  the  15th  of  April  the  Treaty  Articles  XII  to 
XVII  were  agreed  to. 

At  the  conference  on  the  2Gth  of  April  the  British:  Commissioners 
again  brought  before  the  Joint  High  Commission  the  claims  of  the 
people  of  Canada  for  injuries  suffered  from  the  Fenian  raids.  They  said 
that  they  were  instructed  to  present  these  claims  and  to  stiite  that  they 
were  regarded  by  Her  Majesty's  Government  as  coming  within  the  class 
of  subjects  indicated  by  Sir  Edward  Thornton  iu  his  letter  of  January 
20,  as  subjects  for  the  consideration  of  the  Joint  High  Commission. 

The  American  Commissioners  replied  that  they  were  instructed  to  say 
that  the  Government  of  the  United  States  did  not  regard  these  clain^s 
as  coming  within  the  class  of  subjects  indicated  in  that  letter  as  subjects 
for  the  consideration  of  the  Joint  High  Commission,  and  that  they  were 
without  any  authority  from  their  Government  to  consider  them.  They 
therefore  declined  to  do  so. 

The  British  Commissioners  stated  that,  as  the  subject  was  understood 
not  to  be  within  the  scope  of  the  instructions  of  the  American  Commis- 
sioners, they  must  refer  to  their  Government  for  further  instructions 
upon  it. 

At  the  conference  on.the"8d  of  May  the  British  Commissioners  stated 
that  they  were  ins^tructed  by  their  Government  to  express  their  regret 
that  the  Americau  Commissioners  were  without  authority  to  deal  with 


400 


GENERAL   APPENDIX. 


tlie  question  of  the  Fenian  raids,  and  they  inquired  wlietliei-  that  was 
still  the  case. 

The  American  Commissioners  replied  that  they  could  see  no  reason 
to  vary  the  reply  formerly  {>iven  to  this  proposal ;  tlu'^  in  their  view  the 
subject  was  not  embraced  in  the  scope  of  the  co  spoiidence  between 
Sir  Edward  Thornton  and  Mr.  Fish  under  e'tuer  of  the  letters  ot  the 
former;  and  that  they  did  not  feel  justified  in  entering  upon  the  consid- 
eration of  any  class  of  claims  not  contemplated  at  the  time  of  the  crea- 
tion of  the  present  Commission,  and  that  the  claims  now  referred  to  did 
not  commend  themselves  to  their  favor. 

The  British  High  Commissioners  said  that  under  these  circumstances 
they  would  not  urge  further  that  the  settlement  of  these  claims  should 
be  in(!luded  in  the  present  treaty,  and  that  they  ha  1  the  less  difticulty 
in  doing  so,  as  a  portion  of  the  claims  were  of  a  constructive  and  infer- 
ential character. 

Articles  XVIII  to  XXV. 


r^i 


i 
'i 


At  the  conference  on  the  6th  of  March  the  British  Commissioners 
stated  that  they  were  prepared  to  discuss  the  question  of  tlie  Fisheries, 
either  in  detail  or  generally,  so  as  either  to  enter  into  an  examination 
of  the  resi>ective  rights  of  the  two  countries  under  the  Tieaty  of  1818 
and  the  general  law  of  nations,  or  to  approach  at  once  the  settlement  of 
the  question  on  a  comprehensive  basis. 

The  American  Commissioners  said  that  with  the  view  of  avoiding  the 
discussion  of  matters  which  subsequent  negotiation  might  render  it  un- 
necessary to  enter  into,  they  thought  it  would  be  preferable  to  adopt 
the  latter  course,  and  inquired  what,  in  that  case,  would  be  the  basis 
which  the  British  Commissioners  desired  to  propose. 

The  British  Commissioners  replied  that  they  considered  that  the  Re- 
ciprocity Treaty  of  June  5,  1854,  should  be  restored  in  principle. 

The  American  Commissioners  declined  to  assent  to  a  renewal  of  the 
former  reciprocity  treaty. 

The  British  Commissioners  then  suggested  that,  if  any  considerable 
modification  were  inade  in  the  tariff  arrangements  of  that  Treaty,  the 
coasting  trade  of  the  United  States  and  of  Her  Britannic  Majesty's 
Possessions  in  JSTorth  America  should  be  reciprocally  thrown  oi)en,  and 
that  the  luivigation  of  the  Itiver  Saint  Lawrence  and  of  the  Canadian 
Canals  should  be  also  throAvu  open  to  the  citizens  of  the  United  States 
on  terms  of  equality  with  British  subjects. 

The  American  Commissioners  declined  this  proposal,  and  objected  to 
a  negotiation  on  the  basis  of  the  Reciprocity  Treaty.  They  said  that 
that  Treaty  bad  proved  imsatisfactory  to  the  people  of  the  United  States, 
and  consequently  had  been  terminated  by  notice  from  the  Government 
of  the  United  States,  in  pursuance  of  its  provisions.  Its  renewal  was 
not  in  their  interest,  and  would  not  be  in  accordance  with  the  senti 
ments  of  their  people.  They  further  said  that  they  were  not  at  liberty 
to  treat  of  the  opening  of  the  coasting  trade  of  tlie  United  States  to 
the  subjects  of  Her  Majesty  residing  in  her  Possessions  in  North  Amer- 
ica. It  was  agreed  that  the  (luestions  relating  to  the  navigation  of  the 
River  Saint  Lawrence,  and  of  the  Can.adian  Canals,  and  to  other  com- 
iriercial  questions  affecting  Canada,  should  be  treated  by  themselves. 

The  subject  of  the  Fisheries  was  further  discussed  at  the  conferences 
on  the  7th,  20th,  22d,  and  25th  of  March.  The  American  Co'.iinissioners 
stated  that  if  the  value  of  the  inshore  fisheries  could  be  ascertained,  the 
United  States  might  prefer  to  puruhase,  for  a  sum  of  money,  the  right 


r  that  was 

!  no  n^asoii 
ir  view  tlie 
;c  betweiMi 
ters  ot  tlie 
tlic  con  si d- 
f  tlie  Clea- 
ned to  did 

ninistances 

iius  shonld 

s  diliicnlty 

and  int'er- 


K"i?ri 


GENERAL   APPENDIX. 


401 


imissioners 
',  Fisheries, 
vainination 
ity  of  IS  18 
ttlenient  of 

voiding  the 
Mider  it  nn- 
e  to  adopt 
i  the  baisis 

liat  the  Re- 
iph'. 
'Aval  of  the 

msidevable 

L'leaty,  the 

IMaJesty's 

open,  and 

Canadian 

ted  Stales 

►bjected  to 
said  that 
ted  States, 
overnnient 
newal  was 
the  senti 
at  liberty 
States  to 
nth  Anier- 
tion  of  the 
)ther  coiu- 
n  selves, 
onferences 
niissionei's 
tained,the 
,  the  light 


to  enjoy,  in  perpetnity,  the  use  of  these  inshore  fisheries  in  common  with 
British  fishermen,  and  mentioned  one  million  dollars  as  the  snm  they 
were  prepared  to  offer.  The  British  Comiiii^ssioners  replied  that  this 
offer  was,  they  thought,  wholly  inadequate,  and  that  no  arrangement 
would  be  acceptable  of  which  the  admission  into  the  Unit<'d  States  free 
of  dut3'  of  fish,  the  produce  of  the  British  fisheries,  did  not  form  a  part, 
adding  that  any  arrangement  for  the  acquisition  by  purchase  of  the  in- 
shore fisheries  in  perpetuity  was  open  to  grave  objection. 

The  American  Commissioners  inquired  whether  it  would  be  necessary 
to  refer  any  arrangement  for  purchase  to  the  Colonial  or  Provincial  Tar- 
liament. 

The  British  Commissioners  explained  that  the  Fisheries  within  the 
limits  of  maritime  jurisdictiou  were  the  property  of  the  several  British 
Colonies,  and  that  it  would  be  necessary  to  refer  any  arrangement  which 
might  affect  Colonial  property  or  rights  to  the  Colonial  or  Provincial 
Parliament;  and  that  legislation  would  also  bo  required  on  the  part  of 
the  Imperial  Parliament. 

During  these  discussions  the  British  Commissioners  contended  that 
these  inshore  fisheries  were  of  great  value,  and  that  the  most  satisfac- 
torj'^  arrangement  for  their  use  would  be  a  reciprocal  tariff  arrangement, 
and  reciprocity  in  the  coasting  trade;  aud  the  American  Commissioners 
replied  that  their  value  was  overestimated ;  that  tlf  United  States 
desired  to  secure  their  enjoyment,  not  for  their  commercial  or  intrinsic 
value,  but  for  the  purpose  of  removing  a  source  of  irritation  ;  and  that 
they  could  hold  out  no  hope  that  the  Congress  of  the  United  States 
would  give  its  assent  to  such  a  tariff  arrangement  as  was  proposed, 
or  to  any  extended  plan  of  reciprocal  free  admission  of  the  products  of 
the  two  countries;  but  that,  inasmuch  as  one  branch  of  Congress  had 
recently,  more  than  once,  expressed  itself  in  favor  of  the  abolition  of 
duties  on  coal  and  salt,  they  would  propose  that  coal,  salt,  and  fish  be 
reciprocally  admitted  free;  and,  that,  inasmuch  as  Congress  had  re- 
moved the  duty  from  a  portion  of  the  lumber  heretofore  subject  to  duty, 
and  as  the  tendency  of  legislation  in  the  United  States  was  toward  the 
reduction  of  taxation  and  of  duties  in  proportion  to  the  reduction  of  the 
public  debt  and  expenses,  they  would  further  propose  that  lumber  be  ad- 
mitted free  from  duty  from  and  after  the  first  of  July,  1874,  subject  to 
the  approval  of  Congress,  which  was  necessary  on  all  questions  affecting 
import  duties. 

The  British  Commissioners,  at  the  conference  on  the  17th  of  April, 
stated  that  they  had  referred  this  offer  to  their  Government,  and  were 
Instructed  to  inform  the  American  Commissioners  that  it  was  regarded 
as  inadequate,  and  that  Uar  Majesty's  Government  considered  that  free 
lumber  should  be  granted  at  once,  aud  that  the  proposed  tariff"  conces- 
sions should  be  supplemented  by  a  money  payment. 

The  American  Commissioners  then  stated  that  they  withdrew  the 
proposal  which  they  had  previously  made  of  the  reciprocal  free  admis- 
sion of  coal,  salt,  and  fish,  and  of  lumber  after  July  1,  1874;  that  that 
proposal  had  been  made  entirely  in  the  interest  of  a  peaceful  settlement, 
and  for  the  purpose  of  removing  a  source  of  irritation  and  of  anxiety  ; 
that  its  value  had  been  beyond  the  commercial  or  intrinsic  value  of  the 
rights  to  have  been  acquired  in  return ;  and  that  they  could  not  con- 
sent to  an  arrangement  on  the  basis  now  proposed  by  the  British  Com- 
missioners ;  .and  they  renewed  their  proposal  to  pay  a  money  equivalent 
for  the  use  of  the  inshore  fisheries.  They  further  proposed  that,  in  case 
the  two  Governments  should  not  be  able  to  agree  upon  the  sum  to  be 
paid  as  such  an  equivalent,  the  matter  shonld  be  referred  to  an  impartial 
Gommission  for  determinatioD. 
26  u 


402 


GENERAL    APPENDIX. 


m   ; 


'is    'l 

I:  ^-^ 


III 


Pi  i 


Tl)o  British  Commissioners  replied  tliat  this  proposal  was  one  on  which 
they  had  no  instructions,  and  that  it  won!'!  not  be  jjossible  for  them  to 
come  to  any  arrangement  ex(!ept  one  for  a  term  of  years  and  involving 
the  concession  of  free  iish  and  fish-oil  by  the  American  Commissioners ; 
but  that  if  free  fish  and  fish-oil  were  conceded,  they  would  inquire  of 
their  (Jovernment  whether  they  were  prepared  to  assent  to  a  reference 
to  arbitration  as  to  money  payment. 

Tlie  American  Commissioners  replied  that  they  were  willing,  subject 
to  the  action  of  Congress,  to  concede  free  fish  and  fish-oil  as  an  equiva- 
lent for  the  use  of  the  inshore  fisheries,  and  to  make  the  arrangement 
for  a  term  of  years ;  that  they  were  of  the  opinion  that  free  fish  and  Hsh- 
oil  would  be  more  than  an  equivalent  for  those  fisheries,  but  that  they 
were  also  willing  to  agree  to  a  reference  to  determine  that  question  and 
the  amount  of  an^^  money  payment  that  might  be  found  necesssary  to 
complete  an  equivalent,  it  being  understood  that  legislation  would  be 
needed  before  any  payment  could  be  made. 

The  subject  was  further  discussed  in  the  conferences  of  April  18  and 
19,  and  the  liritish  Commissioners  having  referred  the  last  proposal  to 
their  Government  and  received  instructions  to  accept  it,  the  Trenty  Ar- 
ticles XVIII  to  XXV  were  agreed  to  at  the  conference  on  the  li'2<l  of 
April. 

Articles  XXVI  to  XXXIII. 

At  the  conference  on  the  Gth  of  March  the  British  Commissioners  pro- 
posed that  tlie  Reciprocity  Treaty  of  June  5, 1854,  should  be  restored  in 
principle,  and  that,  if  any  considerable  modifications  in  the  tariff  arrange- 
ments in  force  under  it  were  made,  the  coasting  trade  of  the  United 
States  and  of  Her  Britannic  Majesty's  Possessions  in  North  America 
should  be  reciprocally  thrown  open,  and  that  the  navigation  of  the 
River  St.  Lawrence  and  of  the  Canadian  Canals  should  be  thrown  open 
to  the  citizens  of  the  United  States  on  terms  of  equality  with  British 
subjects. 

The  American  Commissioners  declined  this  proposal,  and  in  the  sub- 
sequent negotiations  the  question  of  the  Fisheries  was  treated  by  itself. 

At  the  conference  on  the  17th  of  March  the  eJoint  High  Commission 
considered  the  subject  of  the  American  improvement  of  the  navigation 
of  the  Saint  Clair  F];i\j8. 

At  the  conference  on  the  18th  of  March  the  questions  of  the  naviga- 
tion of  the  River  Saint  Lawrence  and  the  Canals  and  the  other  subjects 
connected  therewith  were  taken  up. 

The  American  Commissioners  proposed  to  take  into  consideration 
the  question  of  transit  of  goods  in  bond  through  Canada  and  the  United 
States,  which  was  agreed  to. 

The  Britistt  Commissioners  proposed  to  take  into  consideration  the 
question  of  opening  the  coasting  trade  of  the  lakes  reciprocally  to  each 
party,  which  was  declined. 

On  the  proposal  of  the  British  CommissionerH  it  was  agreed  to  take 
the  question  of  transshipment  into  consideration. 

The  British  Commissioners  proposed  to  take  into  consideration  the 
reciprocal  registration  of  vessels,  as  between  the  Dominion  of  Canada 
and  the  United  States,  which  was  declined. 

At  the  conference  on  the  23d  of  March  the  transshipment  question 
was  discussed,  and  postponed  for  further  information,  on  the  motion  of 
the  American  Commissioners. 

The  transit  question  was  discussed,  and  it  was  agreed  that  any  settle- 


le  on  wliich 
for  tluMu  to 
I  involving 
nissioners ; 
inqnire  of 
a  reference 

ing,  subject 
an  equiva- 
L-rangeinent 
sh  an«l  fish- 
it  that  they 
iiestion  and 
icesssary  to 
)u  would  be 

Lpril  18  and 
j)ropo8al  to 
Treaty  Ar- 

L  the  !i2d  of 


sioners  pro- 
restored  in 
ritt'arrange- 
the  United 
th  America 
tion  of  the 
hrown  open 
rith  British 

in  the  sub- 
lhI  by  itself. 
Uomuiission 

navigation 

the  naviga- 
ier  subjects 

msideratiou 
the  United 

leration  the 
illy  to  each 

•eed  to  take 

leration  the 
of  Canada 

it  question 
.6  motion  of 

;  any  settle- 


GKXKRAL   APPENDIX. 


403 


went  that  might  be  made  should  include  a  reciprocal  arnuigemont  in 
tliat  respect  for  the  period  tor  wijich  the  Fishery  articles  should  be  in 
forcic. 

The  question  of  the  navigation  of  the  River  Saint  Lawrence  and  the 
Canals  was  taken  up. 

The  British  Commissioners  stated  that  they  regarded  the  concession 
of  the  navigation  of  Lake  Michigan  as  an  equivalent  for  the  concestiion 
of  the  navigation  of  the  River  Saim  La\vreiu;e. 

As  to  the  Canals  they  stated  that  tiie  concession  of  the  privilege  to 
navigsite  them  in  their  present  condition,  on  terms  of  ecjuality  with 
British  subjects,  was  a  much  greater  concession  than  the  corresponding 
use  of  the  Canals  ottered  by  tl«e  United  States. 

They  further  said  that  the  enlargement  of  the  Canals  would  involve 
the  expenditure  of  a  large  amount  of  money,  and  they  asked  what 
equivalent  the  American  Commissioners  i)roi)osed  to  give  for  the  sur- 
render of  the  right  to  control  the  tolls  for  the  use  of  the  Canals,  either 
in  their  i)resent  state  or  after  enlargement. 

The  American  Commissioners  replied,  that  unless  the  Welland  Canal 
should  be  enlarged  so  as  to  accommodate  the  present  course  of  trade, 
they  shoidd  not  be  disposed  to  make  any  concessions ;  that  in  their 
opinion  the  citizens  of  tbe  United  States  could  now  justly  claim  to  nav- 
igate the  River  St.  Lawrence  in  its  natural  state,  ascending  and  descend- 
ing, from  the  forty-tifth  parallel  of  north  latitude,  where  it  ceases  to 
form  the  boundary  between  the  two  countries,  from,  to,  and  into  tin' 
sea;  and  they  could  not  concede  that  the  navigation  of  Lake  Michigan 
should  be  given  or  taken  us  an  ecpiivalent  for  that  right ;  and  they 
thought  that  the  concession  of  the  navigation  of  Lake  Michigan  and  of 
the  Canals  offered  by  them  was  more  than  an  equivalent  for  the  conches 
sions  as  to  the  Canadian  Canals  which  were  asked.  They  proposed,  in 
connection  with  a  reciprocal  arrangement  as  to  transit  and  transshij) 
ment,  that  Canada  should  agree  to  enlarge  the  Welland  and  St.  Law- 
rence Canals,  to  make  no  discriminating  tolls,  and  to  limit  the  tolls  to 
rates  sufficient  to  maintftin  the  Canals,  pay  a  reasonable  interest  on  the 
cost  of  constiuctiou  and  enlargement,  and  raise  a  sinking-fund  for  the 
rei)aying,  within  a  reasonable  time,  the  cost  of  enlargenient ;  and  that 
the  navigation  of  the  River  St.  Lawrence,  the  Canadian  Canals,  the 
Canals  ottered  by  the  United  States,  and  Lake  Michigan  should  be  en- 
joyed reciprocally  by  citizens  of  the  United  States  and  by  British  sub- 
jects. This  proposal  was  declined  by  the  British  Commissioners,  who 
repeated  that  they  did  not  regard  the  equivalent  offered  by  the  United 
States  as  at  all  commensurate  with  the  concessions  asked  from  Great 
Britain. 

At  the  conference  on  the  27th  of  March  the  proposed  enlargement  of 
the  Canadian  Canals  was  further  discussed.  It  was  stated  on  the  part 
of  the  British  Commissioners  that  the  Canadian  Government  were  now 
considering  the  expediency  of  enlarging  the  capacity  of  the  Canals  on 
the  River  St.  Lawrence,  and  had  already  provided  for  the  enlargement 
of  the  Welland  Canal,  which  would  be  undertaken  without  delay. 

The  subject  of  the  export  duty  in  New  Brunswick  on  American  lumber 
floated  down  the  River  St.  John,  was  proposed  for  consideration  by  the 
American  Commissioners. 

At  the  conference  on  the  23d  of  April  the  British  Commissioners  pro- 
posed that  the  navigation  of  Lake  Michigan  should  be  given  in  exchange 
for  the  navigation  of  the  River  St.  Lawrence ;  and  that  Her  Majesty's 
Government  should  agree  to  urge  upon  the  Dominion  of  Canada  to  give 
to  the  citizens  of  the  United  States  tbe  use  of  the  Canadian  Canals  on 


404 


GKNERAL   APPENDIX. 


i 


2*.  V 


i 


tortus  of  oqualify  witli  British  subjects;  and  that  the  Govoriiinciitof  the 
United  States  should  agree  to  urga  upon  the  several  States  to  give  to 
British  subjects  the  use  of  the  several  State  Caiuils  on  terms  of  e«iuality 
with  citi/eusof  the  United  States.  Tiiey  also  proposed,  as  part  of  the 
arrangement,  a  reciprocal  agreement  as  to  transit  and  transshipment, 
and  that  the  Government  of  Great  Britain  should  urge  upon  New 
Brunswick  not  to  impose  export  duties  on  the  luujber  floated  down  the 
River  St.  John  for  shipment  to  the  United  States. 

The  American  Commissioners  repeated  their  views  as  to  the  navigation 
of  the  Kiver  St.  Lawrence  in  its  natural  state. 

The  British  Commissioners  replied  that  they  could  not  admit  the 
claims  of  American  citizens  to  navigate  the  Kiver  St.  Lawrence  as  of 
right;  but  that  the  British  Government  had  no  desire  to  exclude  them 
from  it.  They,  however,  pointed  out  that  there  Avere  certain  rivers  run- 
ning through  Alaska  which  should  on  like  grounds  be  declared  free  and 
oi)en  to  British  subjects,  in  case  the  Kiver  St.  Lawrence  should  be  de- 
clared free. 

The  American  (Commissioners  replied  that  they  were  prepared  to 
consider  that  question.  They  aV^o  assented  to  the  arrangement  as  to 
the  canals,  which  was  proposed  by  the  British  Commissioners,  limiting 
it,  as  regarded  American  Canals,  to  the  canals  connected  with  the  navi- 
gation of  the  lakes  or  rivers  traversed  by  or  contiguous  to  the  boundary- 
line  between  the  British  and  American  possessions.  They  likewise 
agreed  to  give  the  right  of  navigating  Lake  Michigan  for  a  term  of 
years.  They  desired,  and  it  was  irgreed,  that  the  tran8shii)ment  ar- 
rangement should  be  made  dep'jndent  ui)on  the  nonexistence  of  dis- 
criminating tolls  or  regulations  on  the  Canadian  Canals,  and  also  upon 
the  abolition  of  the  New  Brunswick  export  duty  on  American  lumber 
intended  for  the  United  States.  It  w  as  also  agreed  that  the  right  of 
carrying  should  be  made  dependent  upon  the  non-imposition  of  export 
duties  on  either  side  on  the  goods  of  the  other  party  passing  in  transit. 

The  discussion  of  these  subjects  was  further  continued  at  the  confer- 
ences of  the  24th,  25th,  and  26tli  of  April,  and  the  Treaty  Articles  XXVI 
to  XXXIII  were  agreed  to  at  the  conference  on  the  3d  of  May. 

In  the  course  of  these  discussions  the  British  Commissioners  called 
attention  to  the  question  of  the  survey  of  the  boundary-line  along  the 
forty-ninth  parallel,  which  still  remained  unexecuted  from  the  Lake  of 
the  Woods  to  the  Rocky  Mountains,  and  to  which  reference  had  been 
made  in  the  President's  Message. 

The  American  Commissioners  stated  that  the  survey  was  a  matter  for 
administrative  action,  and  did  not  require  to  be  dealt  with  by  a  treaty 
provision.  The  United  States  Government  would  be  prepared  to  agree 
with  the  British  Government  for  the  appointment  of  a  boundary  survey 
commission  in  the  same  manner  as  had  been  done  in  regard  to  the 
remainder  of  the  boundary  along  the  forty-ninth  parallel  as  soon  as  the 
legislative  appropriations  and  other  necessary  arrangements  could  be 
made. 

Articles  XXXIV  to  XLIL 

At  the  conference  on  the  15th  of  March  the  British  Commissioners 
stated  that  it  was  proposed  that  day  to  take  up  the  Northwest  water- 
boundary  question ;  that  the  difference  was  one  of  long  standing,  which 
had  more  than  once  been  the  subject  of  negotiations  between  the  two 
Governments,  and  that  the  negotiators  had,  in  January,  1869,  agreed 
upon  a  treaty.  They  then  pioposed  that  an  arbitration  of  this  question 
should  be  made  upon  the  basis  of  the  provisions  of  that  Treaty. 


GENERAL  APPENDIX. 


405 


iiciit  of  the 
to  give  to 
)f  equality 
nut  of  tlie 
(Hhipinunt, 
ipoii  New 
[  dowu  the 

javigiitioii 

admit  the 
eiice  as  of 
jhule  them 
rivers  run- 
Mi  free  and 
lUd  bo  de- 

repared  to 
luent  as  to 
I's,  limiting 
h  the  navi- 
boundary- 
y  likewise 
■  a  term  of 
ipment  ar- 
'uce  of  dia- 
l  also  upon 
^an  lumber 
lie  right  of 
of  export 
in  trausit. 
the  coufer- 
clesXXVI 

lers  called 
along  the 

le  Lake  of 
had  been 

matter  for 
)y  a  treaty 

to  agree 
ary  survey 
ard  to  the 
oon  as  the 

could  be 


tnissioners 
'est  water- 
ing, which 
a  the  two 
B9,  agreed 
9  question 
ty. 


The  American  Comnjiasionera  replied  that,  though  no  formal  vote 
was  actually  taken  upon  it,  it  was  well  understood  that  that  Treaty  had 
not  been  favorably  regarded  by  the  Senate.  They  declined  the  i>roposal 
of  the  British  CommiNsioners,  and  expressed  their  Mish  that  an  eftbrt 
should  be  made  to  settle  the  (question  in  the  Joint  High  Commission. 

The  British  Commissioners  assented  to  this,  and  presented  the  rea- 
sons which  induced  them  to  regard  the  llosario  Straits  as  the  channel 
contemplated  by  the  Treaty  of  June  15,  1846. 

The  American  Commissioners  replied,  and  presented  the  reasons  which 
induced  them  to  regard  the  Haro  Channel  as  the  channel  contemplated 
by  tliat  Treaty.  They  also  produced  in  support  of  their  views  some 
original  correspondence  of  Mr.  Everett  with  his  Government,  which 
had  not  been  alluded  to  in  previous  discussions  of  the  question. 

The  British  Commissioners  replied  that  they  saw  in  that  correspond- 
ence no  reason  to  induce  them  to  change  the  o])inion  which  they  had 
previously  expressed.  They  then  asked  whether  the  American  Commis- 
sioners had  any  further  proposal  to  make. 

The  American  Commissioners  replied  that,  in  vie\7  of  the  position 
taken  by  the  British  Commissioners,  it  appeared  that  the  Treaty  of 
June  15, 1846,  might  have  been  made  under  a  mutual  raisundt^rstand- 
ing,  and  would  not  have  been  made  had  each  party  understood  at  that 
time  the  construction  which  the  other  party  puts  upon  the  language 
whose  interpretation  is  in  dispute ;  they  therefore  proposed  to  abrogate 
the  whole  of  that  part  of  the  Treaty,  and  re-arrange  the  boundary-line 
which  was  in  dispute  before  that  Treaty  was  concluded. 

The  British  Commissioners  replied  that  the  proposal  to  abrogate  a 
treaty  was  one  of  a  serious  character,  and  that  they  had  no  instructions 
which  would  enable  them  to  entertain  it ;  and  at  the  conference  on  the 
20th  of  March  the  British  Commissioners  declined  the  proposal. 

At  the  conference  on  the  19th  of  April  the  British  Commissioners 
proposed  to  the  American  Commissioners  to  adopt  the  Middle  Channel 
(generally  known  as  the  Douglas  Channel)  as  the  channel  through  which 
the  boundary-line  should  be  run,  with  the  understanding  that  all  the 
channels  through  the  Archipelago  should  be  free  and  common  to  both 
parties. 

The  American  Commissioners  declined  to  entertain  that  proposal. 
Thej'  proposed  that  the  Joint  High  Commission  should  recognize  the 
Haro  Channel  as  the  channel  intended  by  the  Treaty  of  June  15,  1840, 
with  a  mutual  agreement  that  no  fortifications  should  be  erected  by 
either  party  to  obstruct  or  command  it,  and  with  proper  provisions  as 
to  any  existing  proprietary  rights  of  British  subjects  in  the  island  of 
San  Juan. 

The  British  Commissioners  declined  this  proposal,  and  stated  that, 
being  convinced  of  the  justice  of  their  view  of  the  Treaty,  they  could 
not  abandon  it  except  after  a  fair  decision  by  an  impartial  arbitrator. 
They  therefore  renewed  their  proposal  for  a  reference  to  arbitration, 
and  hoped  that  it  would  be  seriously  considered. 

The  American  Commissioners  replied  that  they  had  hoped  that  their 
last  proposal  would  be  accepted.  As  it  had  been  declined,  they  would, 
should  the  other  questions  between  the  two  Governments  be  satisfactorily 
adjusted,  agree  to  a  reference  to  arbitration  to  determine  whether  the 
line  should  run  through  the  Haro  Channel  or  through  the  liosario 
Straits,  upon  the  condition  that  either  Government  should  have  the 
right  to  include  in  the  evidence  to  be  considered  by  the  Arbitrator  such 
documents,  official  correspondence,  and  other  ofiicial  or  public  state- 
ments, bearing  on  the  subject  of  the  reference,  as  they  may  consider 


406 


OENERAL   APPENDIX. 


U  si' 


iK'coHSjiry  to  the  support  of  thoir  roapectivo  ciises.  This  condition  was 
agreed  to. 

Tlie  liriti^h  Commissioners  proposed  that  tlie  Arbitrator  Rhould  have 
the  ri^ht  to  draw  the  boundary  throiigli  an  intermediate  cliannoh  The 
Airierican  Commissioners  declined  this  proposal,  stating  that  they  de- 
sired a  decision,  not  a  com])roniise. 

The  British  Commissioners  proposed  that  it  slionid  be  declared  to  be 
the  proper  construction  of  the  Treaty  of  184(i  that  all  the  channels  were 
to  be  open  to  navi^^ation  by  both  parties.  The  Anierican  Connnissioners 
stated  that  they  did  not  so  construe  the  Treaty  of  18i(>,  and  therefore 
could  not  assent  to  such  a  declaration. 

The  discussion  of  this  subject  was  continued  dnring  this  conference, 
and  in  the  conference  of  the  22d  of  April  the  Treaty  Articles  XXXIV 
to  XLII  were  a}>reed  to. 

The  Joint  Iliyh  Commissioners  approved  this  statement,  and  directed 
it  to  be  entered  in  the  protocol. 
The  conference  was  adjourned  to  the  Cth  of  Mav. 

j.  c.  bancroft  davis. 
tentp:uden. 


XXXVII.— PROTOCOL  OF  CONFERENCE  BETWEEN  THE  HIGH  COMMISSION- 
ERS OX  THE  PART  OF  THF  UNITED  STATES  OF  AMlHilCA  AND  THE 
HIGH  COMMISSIONERS  ON  THE  PART  OF  GREAT  BRITAIN. 

AVashington,  May  G,  1871. 

The  High  Commissioners  having  met,  the  protocol  of  the  conference 
held  on  the  4th  of  May  was  read  an<l  confirmed. 

Lord  de  Grey  said,  that  as  the  Joint  High  Commission  would  not 
meet  again  after  to-day.  except  for  the  purpose  of  signing  the  Treaty, 
he  desired,  on  behalf  of  himself  and  his  colleagues,  to  express  their  high 
appreciation  of  the  manner  in  which  Mr.  Fish  and  his  Anterictiu  col- 
leagues had,  on  their  side,  conducted  the  negotiations.  It  had  been 
most  gratifying  to  the  British  Commissioners  to  be  jissociated  with  col- 
leagues who  were  animated  with  the  same  sincere  desire  as  themselves 
to  bring  about  a  settlement,  equally  honorable  and  just  to  both  countries, 
of  the  various  questions  of  which  it  had  been  their  duty  to  treat,  and 
the  British  Commissioners  would  always  retain  a  grateful  recollection  of 
the  fair  and  friendly  spirit  which  the  Imericau  Commissioners  had  dis- 
played. 

Mr.  Fish,  in  behalf  of  the  Aijif  vican  Commissioners,  said  that  they 
■were  gratefully  sensible  of  the  friendly  words  expressed  by  Lord  de 
Grey,  and  of  the  kind  spirit  which  had  prompted  them.  From  the  date 
of  the  tirst  conference  the  American  Commissioners  had  been  impressed 
by  the  earnestness  of  desire  manifested  by  the  British  Conunissioners 
to  reach  a  settlement  Avorthy  of  the  two  Powers  who  had  committed  to 
this  Joint  High  Commission  the  treatment  of  various  questions  of  pecu- 
liar interest,  complexity,  and  delicacy.  His  colleagues  and  he  could 
never  cease  to  appreciate  the  generous  spirit,  and  the  open  and  friendly 
manner  in  which  the  British  Commissioners  had  met  and  discussed  the 
several  questions  that  had  led  to  the  conclusion  of  a  Treaty  which  it 
was  hoped  would  receive  the  approval  of  the  people  of  both  countries, 
and  would  prove  the  foundation  of  a  cordial  and  friendly  understand- 
ing between  them  for  all  time  to  come. 


GENERAL    API'KXUIX. 


407 


lition  wa8 

[)iild  lirtve 
iiol.  The 
[  they  de- 

ired  to  be 
mels  were 
liHsioiiers 
tlieiofore 

inference, 
I  X XXIV 

1  directed 


)AVIS. 


VIMISSION- 
AND   THE 

G,  1871. 
lonfereiice 

vouUl  nob 
le  Treaty, 
their  hi^h 
ricau  col- 
ad  been 
with  col- 
jeinselves 
countries, 
Teat,  and 
lection  of 
had  dis- 


Mr.  Fish  fnrthor  said  that  ho  was  sure  tiiut  every  nu'inlH-r  of  the 
Joint  Ili^h  Commission  wonhl  desire  to  record  liis  a|>|i|re('iatii)n  of  the 
ability,  the  zeal,  and  tiie  nnc(>asin^  hibor  whicli  the  floint  Protocolists 
had  <>.\liibited  in  the  discharge  of  tiieir  arduous  ami  responsible  duties, 
and  that  he  knew  that  he  only  yave  expression  to  the  teelinjjs  of  the 
Commissi(»ner8  in  saying  that  Lord  Teiitcrden  and  Mr.  l^ancrot't  J)avis 
were  entitled  to,  and  were  requesti'd  to  accept  the  thanks  of,  the  Joint 
Iligli  Commission  for  their  valuable  services,  and  the  ^^reat  assistance 
which  they  had  rendered  with  unvarying  obligin^^ness  to  the  Commis- 
sion. 

Lord  de  Grey  replied,  on  behalf  of  the  British  Commissioners,  that  he 
and  his  colleagnes  most  coriially  concnrred  in  the  proposal  made  by 
Mr.  Fish  tlnit  the  thanks  of  the  Joint  High  Commission  should  be  ten- 
dered to  Mr.  Bancroft  Davis  and  Lord  Tenterden  for  their  valuable 
services  as  Joint  Protocolists.  Tiie  British  Commissioners  were  also 
fnll  as  sensible  as  their  American  colleagues  of  the  great  advantage 
which  the  Commission  had  derived  from  the  assistance  which  those  gen- 
tlemen had  given  them  ni  the  conduct  of  the  important  negotiations  in 
which  they  had  been  engaged. 

Monday,  the  8th  of  Mav,  was  appointed  for  the  signatures  of  the 
Treaty. 

J.  C.  BANCROFT  DAVIS. 
TE>^TEUDEN. 


that  they 
Lord  de 
the  date 
nipressed 
lissioners 
uiitted  to 
s  of  pecu- 
he  could 
3  friendly 
ussed  the 
which  it 
countries, 
derstaud- 


f 


OHHI 


VI.-TREATY  OF  WASHINGTON,  MAY  8,  1871. 


It 


I' 


VI.— TREATY  BETWEEN  THE  UNITED  STATES  AND  GREAT  BRITAIN  FOR  THE 
SETTLEMENT  OF  PENDING  QUESTIONS  BETWEEN  THE  TWO  COUNTRIES, 
CONCLUDED  AT  WASHINGTON,  ON  THE  Sxii  OF  MAY,  1^71 ;  RATIFICATION 
ADVISED  BY  THE  SENATE  MAY  24,  1871 ;  RATIFIED  BY  THE  PRESIDENT 
MAY  25,  1871;  RATIFICATIONS  EXCHANGED  AT  LONDON  TUNE  17,  18715 
PROCLAIMED  JULY  4,  1871. 

The  United  States  of  America  and  Her  Britannic  Majesty,  being 
desirous  to  provide  for  an  amicable  settlement  of  all  causes  of  differ- 
ence between  the  two  countries,  have  for  that  purpose  appointed  their 
resi)eutive  Plenipotentiaries,  that  is  to  say  :  the  President  of  the  United 
States  has  ap[)ointed  on  the  part  of  the  IJnited  States  as  Commission- 
ers in  a  Joint  High  Commission  and  Plenipotentiaries,  Hamilton  Fish, 
Secretary  of  State ;  Kober^  Cumming  Schenck,  Envoy  Extraordinary 
and  Minister  PIeni;>otentiary  to  Great  Britain  ;  Samuel  Nelson,  an  Asso- 
ciate Justice  of  the  Supreme  Court  of  the  United  States ;  Ebenezer 
Rockwood  Hoar,  of  Massachusetts ;  and  George  Henry  Williams,  of 
Oregon ;  aiul  Her  Britannic  Majesty  on  her  part  has  appointed  as  her 
Higli  Commissioners  and  Plenipotentiaries,  the  Kight  Hcmora  >U^ 
George  Frederick  Samuel,  Earl  de  Grey  and  Earl  of  Itipon,  ^'i  <  >  v., 
Godeiich,  Baron  Grantham,  a  Baronet,  a  Peer  of  the  United  Kii^.^  ijui. 
Lord  President  of  Her  Majesty's  Most  Honorable  Privy  Counci"., 
Knight  of  the  Most  Noble  Order  of  the  Garter,  etc.,  etc. ;  the  Bight 
Honorable  Sir  Stattbrd  Henry  Northcote,  Baronet,  one  of  Her  Majesty's 
Most  Honorable  Privy  Council,  a  Member  of  Parliament,  a  Compan- 
ion of  the  Most  Honorable  Order  of  the  Bath,  etc.,  etc.;  Sir  Edward 
Thornton,  Knight  Commander  of  the  Most  Honorable  Order  of  the 
Bath,  Her  Majesty's  Envoy  Extraordinary  and  Minister  Plenipotentiary 
to  the  United  States  of  America;  Sir  John  Alexander  Macdonald, 
Knight  Commander  of  the  Most  Honorable  Order  of  the  Bath,  a  nieui- 
ber  of  Her  Majesty's  Privy  Council  for  Canada,  and  Minister  of  Justice 
and  Attorney-General  of  Her  Majesty's  Dominion  of  Canada ;  and 
Montague  Bernard,  Esquire,  Chichele  Professor  of  International  Law 
in  the  University  of  Oxford. 

And  tiie  said  Plenipotentiaries,  after  having  exchanged  their  full 
Powers,  wiiich  were  fouiul  to  be  in  due  aud  proper  form,  have  agreed  to 
and  concluded  the  following  Articles  : 

Article  I. 

Whereas  diiferences  Imve  arisen  between  the  Government  of  t'.ie 
United  States  aud  the  Government  of  Her  Britannic  Majesty,  ami  still 
exist,  glowing  out  of  the  acts  cotnmitted  by  the  several  vessels  which 
have  given  rise  to  the  claims  generically  known  as  the  "Alabama 
claims ;" 

And  whereas  Her  Britannic  Majesty  has  authorized  Her  High  Com- 
missioners and  Plenipotentiaries  to  express,  in  a  friendly  spirit,  t'." 
regret  felt  by  Her  Majesty's  Government  for  the  escape,  under  w'f 
ever  circumstances,  of  the  Alabama  aud  other  vessels  from  British  portts, 
and  for  the  depredations  conunitted  by  those  vessels : 

Now,  in  order  to  remove  and  adjust  all  complaints  and  claims  on  the 
part  of  the  United  States,  and  to  provide  for  the  speedy  ^vttlemeut  of 


GENERAL   APPENDIX. 


411 


IN  FOR  THE 
JOUM'RIES, 
riFICATION 
PRESIDENT 
NE  17,  18715 


L^sty,  being 
8  of  ditfer- 
>inted  their 
tlie  United 
onimission- 
lilton  Fisb, 
:raoidinary 
11,  an  Asso- 
;  Ebenezer 
''illiams,  of 
ited  as  her 
Honoia  ibi 
I,  Vh^i  n.nii. 
Kin  J,;  .'.JIM, 
y  Couuci'., 
the  Kight 
r  Majesty's 
[I  Com  pail" 
ir  Edward 
ler  of  the 
potentiary 
lacdonald, 
til,  a  luein- 
of  Justice 
ada ;  and 
ional  Law 

their  full 
agreed  to 


such  claims,  which  are  not  admitted  by  Her  Britannic  Majesty's  Govern- 
ment, the  High  Contracting  Parties  agree  tiiat  all  the  said  claims, 
growing  out  of  acts  committed  by  the  aforesaid  vessels  and  generically 
known  as  the  "Alabama  claims,"  shall  be  referred  to  a  Tribunal  of  Ar- 
bitration to  be  composed  of  Ave  Arbitrators,  to  be  appointed  in  the  fol- 
lowing manner,  that  is  to  say :  One  shall  be  named  by  the  President  of 
the  United  States;  one  shall  be  named  by  Her  Britannic  ]\Iajesty  ;  His 
Majesty,  the  King  of  Italy,  shall  be  requested  to  name  one  ;  the  Presi- 
dent of  the  Swiss  Confederation  shall  be  requested  to  name  one ;  and 
His  Majesty,  the  Emperor  of  Brazil,  shall  be  reipiested  to  name  one. 

In  case  of  the  death,  absence,  or  incapacity  to  serve  of  any  or  either 
of  the  said  Arbitrators,  or  in  the  event  of  either  of  the  said  Arbitrators 
omitting  or  declining  or  ceasing  to  act  as  such,  the  President  of  the 
United  States,  or  Her  Britannic  Majesty,  or  His  Majesty  the  King  of 
Italy,  or  the  Presirtent  of  the  Swiss  Confederation,  or  His]Majesty  the 
Emperor  of  Brazil,  as  the  case  may  be,  may  forthwith  name  another 
person  to  act  as  Arbitrator  in  the  place  and  stead  of  the  Arbitrator 
originally  named  by  such  Head  of  a  State. 

And  in  the  event  of  the  refusal  or  omission  for  two  months  after  re- 
ceipt of  the  request  from  either  of  the  High  Contracting  Parties  of  His 
Majesty  the  King  of  Italy,  or  the  President  of  the  Swiss  Confederation, 
or  His  Majesty  the  Emperor  of  Brazil,  to  name  an  Arbitrator  either  to 
fill  tiie  original  appointment  or  in  the  place  of  one  who  may  have  died, 
be  absent,  or  incapacitated,  or  who  may  omit,  decline,  or  from  any  cause 
cease  to  act  as  such  Arbitrator,  His  Majesty  the  King  of  Sweden  and 
!Norw.ay  shall  be  requested  to  name  one  or  more  persons,  as  the  case 
may  be,  to  act  as  such  Arbitrator  or  Arbitrators. 

Article  II. 

The  Arbitrators  shall  meet  at  Geneva,  in  Switzerland,  at  the  earliest 
convenient  day  after  they  shall  liave  been  named,  and  shall  proceed 
impartially  and  carefully  to  examine  and  decide  all  (piestions  that  shall 
be  laid  before  them  on  the  part  of  the  Governments  of  the  United 
States  and  Her  Britannic  JNIajesty  respectively.  All  questions  con- 
sidered by  the  Tribunal,  including  the  final  award,  shall  be  decided  by 
f^  majority  of  all  the  Arbitrators. 

Yj,\r\i  of  the  High  Contracting  Parties  shall  also  name  one  person  to 
iitt'  nd  the  Tribunal  as  its  agent  to  represent  it  generally  in  all  matters 
cu.M'cted  witl\  the  arbitration. 

Article  III. 


3nt  of  t!ie 
,  and  still 
>els  which 
'Alabama 

ligli  Com- 
?pirit,  t''." 
ider  w'  vt 
tish  ports, 

ins  on  the 
Jemeut  of 


'}  lie  written  or  printed  case  of  each  of  tlu  two  Parties,  accompanied 
by  the  documents,  the  oflicial  correspondence,  and  other  evidence  on 
wiii(!li  each  relies,  shall  be  delivnvd  in  duj  licate  to  each  of  the  Arbi- 
trators and  to  the  agent  !»f  the  othei  ''arty  as  soon  as  may  be  after  tiie 
organization  of  the  Tribunal,  but  within  a  period  not  exceeding  six 
months  from  the  date  of  the  exchange  of  the  ratifications  of  this  Treaty. 


Article  IV. 

Within  four  montlia  after  the  deliverj'^  on  both  sides  of  the  written  or 
printed  case,  either  Party  may,  in  like  manner,  deliver  in  duplicate  to 
each  of  the  said  Arbitrators,  and  to  the  agent  of  the  other  Party,  a 


412 


GENERAL   APPENDIX. 


counter  case  and  additional  documents,  correspondence,  and  evidence, 
in  reply  to  the  case,  documents,  correspondence,  and  evidence  so  pre- 
sented by  the  other  Party. 

The  Arbitrators  may,  however,  extend  the  time  for  delivering  such 
counter  case,  documents,  correspondence,  and  evidence,  when,  in  their 
judgment,  it  becomes  necessary,  in  consequence  of  the  distance  of  the 
place  from  which  the  evidence  to  be  presented  is  to  be  procured. 

If  in  the  case  submitted  to  the  Arbitrators  either  Party  shall  have 
specified  or  alluded  to  any  repoi't  or  document  in  its  own  exclusive  pos- 
session without  annexing  a  copy,  such  Party  shall  be  bound,  if  the  other 
Party  thinks  proper  to  apply  for  it,  to  furnish  that  Party  with  a  copy 
thereof;  and  either  Party  may  call  upon  the  other,  through  the  Arbi- 
trators, to  produce  the  originals  or  certified  copies  of  any  papers  adduced 
as  evidence,  giving  in  each  instance  such  reasonable  notice  as  the  Arbi- 
trators may  require. 


Article  V. 

It  shall  be  the  duty  of  the  agent  of  each  Party,  within  two  months 
after  the  expirat'on  of  the  time  limited  for  the  delivery  of  the  counter 
case  on  both  sidi  .  '  sliver  in  duplicate  to  each  of  the  said  Arbitrators 
and  to  the  agent  c.  jther  Party  a  written  or  printed  argument  show- 
ing the  points  and  re,  ring  to  the  evidence  upon  which  his  Government 
relies ;  and  the  Arbitrators  may,  if  thty  desire  further  elucidation  with 
regard  to  any  point,  require  a  written  or  printed  statement  or  argument, 
or  oral  argument  by  counsel  upon  it ;  but  in  such  case  the  other  Party 
shall  be  entitled  to  reply  either  orally  or  in  writing  as  the  case  may  be. 

Article  VI. 


li  f 


In  deciding  the  matters  submitted  to  the  Arbitrators  they  shall  be 
governed  by  t'je  following  three  rules,  which  are  agreed  upon  by  the 
High  Contracting  Parties  as  rules  to  be  taken  as  applicable  to  the  case, 
and  by  such  principles  of  International  Law  not  inconsistent  therewith 
as  the  Arbitrators  shall  determine  to  have  been  applicable  to  the  case. 


m 


RULES. 

.  A  neutral  Government  is  bound — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming,  or  equip- 
ping, within  its  jurisdiction,  of  any  vessel  which  it  has  reasonable 
ground  to  believe  is  intended  to  cruise  or  to  carry  on  war  against  a 
power  with  which  it  is  at  peace;  and  also  to  use  like  diligence  to  pre- 
vent the  departure  from  its  jurisdiction  of  any  vessel  intended  to  cruise 
or  carry  on  war  as  above,  such  vessel  having  been  specially  adapted,  in 
whole  or  in  part,  within  such  jurisdiction,  to  warlike  use. 

Secondly,  not  to  permit  or  suffer  either  belligerent  to  make  use  of  its 
ports  or  waters  as  the  base  of  naval  operations  against  the  other,  or  for 
the  purpos"^  of  the  renewal  or  augmentation  of  military  supplies  or 
arms,  or  thi  recruitment  of  men. 

Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters,  and, 
as  to  all  persons  within  its  jurisdiction,  to  prevent  any  violation  of  the 
foregoing  obligations  and  duties. 

Her  Britannic  Majesty  has  commanded  her  High  Commissioners  and 
Plenipotentiaries  to  declare  that  Her  Majesty's  Government  cannot  as 
sent  to  the  foregoing  rules  as  a  statement  of  principles  of  Internationa 


GENERAL   APPENDIX. 


413 


evidence, 
e  so  pre- 

rinjf  auch 
1,  in  tlieir 
ice  of  the 

BCl. 

iiiill  have 
iisive  pos- 
the  other 
th  a  copy 
the  Arbi- 
8  add need 
the  Arbi- 


''0  months 
le  counter 
rbitrators 
cut  show- 
vernment 
ition  with 
irp^uinent, 
ber  Party 
e  may  be. 


shall  be 

m  by  the 

the  case, 

;herewith 

the  case. 


or  eqnip- 
asonable 
igainst  a 
to  i)re- 
to  cruise 
apted, iu 

se  of  its 
er,  or  for 
jplies  or 

ers,  and, 
n  of  the 

ners  and 
mnot  as 
nation  a 


Law  which  were  in  force  at  the  time  when  the  claims  mentioned  in  Arti- 
cle I  arose,  but  that  Her  Msijesty's  Government,  in  order  to  evince  its 
desire  of  strengthening  the  friendly  relations  between  the  two  countries 
and  of  making  satisfactory  provision  for  the  future,  agrees  that  in  de- 
ciding the  questions  between  the  two  countries  arising  out  of  those 
claims,  the  Arbitrators  should  assume  that  Her  Majesty's  (jovernmeut 
had  undertaken  to  act  upon  the  principles  set  forth  in  these  rules. 

And  the  high  contracting  parties  agree  to  observe  these  rules  as  be- 
tween themselves  iu  future,  and  to  bring  them  to  the  kiu)wledge  of 
other  maritime  powers,  and  to  invite  them  to  accede  to  them. 

Artict.e  vir. 

The  decision  of  the  Tribunal  shall,  if  possible,  be  made  within  three 
months  from  the  close  of  the  argument  on  both  sides. 

It  shall  be  made  in  writing  and  dated,  and  shall  be  signed  by  the 
Arbitrators  who  may  assent  to  it. 

The  said  Tribunal  shall  first  determine  as  to  each  vessel  separately 
whether  Great  Britain  has,  by  any  act  or  omission,  failed  to  fultill  any 
of  the  duties  set  forth  in  the  foregoing  three  rules,  or  recognized  by  the 
principles  of  International  Law  not  inconsistent  with  such  rules,  and 
shall  certify  such  fact  as  to  each  of  the  said  vessels.  In  case  the  Tri- 
bunal find  that  Great  Britain  has  failed  to  fulfill  any  duty  or  duties  as 
aforesaid,  it  may,  if  it  think  proper,  proceed  to  award  a  sum  iu  gross  to 
be  paid  by  Great  Britain  to  the  United  States  for  all  the  claims  referred 
to  it ;  and  in  such  case  the  gross  sum  so  awarded  shall  be  i)uid  in  coin 
by  the  Government  of  Great  Britain  to  the  Government  of  the  United 
States,  at  Washington,  within  twelve  months  after  the  date  of  the 
award. 

The  award  shall  be  in  duplicate,  one  copy  whereof  shall  be  delivered 
to  the  agent  of  the  United  States  for  his  Government,  and  the  other 
copy  shall  be  delivered  to  the  agent  of  Great  Britain  for  his  Govern- 
meut. 

Article  VIII. 

Each  Government  shall  pay  its  own  agent  and  provide  for  the  proper 
remuneration  of  the  counsel  employed  by  it  and  of  the  Arbitrator 
appointed  by  it,  and  for  the  expense  of  preparing  and  submitting  its 
case  to  the  Tribunal.  All  other  expenses  connected  with  the  arbitration 
shall  be  defrayed  by  the  two  Governments  in  equal  moieties. 

Article  IX. 

The  Arbitrators  shall  keep  an  accurate  record  of  their  proceedings, 
^nd  may  appoint  and  employ  the  necessary  officers  to  assist  them. 

Article  X. 

In  case  the  Tribunal  finds  that  Great  Britain  has  failed  to  fulfill  any 
duty  or  duties  as  aforesaid,  and  does  not  award  a  sum  in  gross,  the 
High  Contracting  Parties  agree  that  a  Board  of  Assessors  shall  be 
appointed  to  ascertain  and  determine  what  claims  are  valid,  and  what 
amount  or  amounts  shall  be  paid  by  Great  Britain  to  the  United  States 
on  account  of  the  liability  arising  from  such  failure,  as  to  each  vessel, 
according  to  the  extent  of  such  liability  as  decided  by  the  Arbitrators. 

The  Board  of  Assessors  shall  be  constituted  as  follows :  One  member 


lliT 


I'i  I 


414 


GENERAL    APPENDIX. 


It! 

If 


'i 


thereof  slmll  be  named  by  the  President  of  tlie  United  States,  one 
member  therooi'  shall  be  named  by  Her  Britannic  Majesty,  and  one 
member  thereof  slia!!  be  nained  by  the  Jtepresentative  at  Washington 
of  His  Majesty  the  Kingf  of  Italy  ;  and  in  ease  of  a  vacancy  bapijening 
from  any  cause  it  shall  be  filled  in  the  same  manner  in  which  the  ori- 
ginal appointment  was  made. 

As  s'">n  as  possible  after  such  nominations  the  Board  of  Assessors 
shall  bo  organized  in  Washington,  with  power  to  hold  their  sittings 
there,  or  in  New  York,  or  in  Boston.  The  members  thereof  shall  sever- 
ally snbs(*ribe  a  solemn  declaration  that  they  will  impartially  and  care- 
fully exajnine  and  decide,  to  the  best  of  their  judgment  and  ac(.'ording 
to  justice  and  equity,  all  mutters  submitted  to  them,  and  shall  forth- 
with proceed,  under  such  rules  and  regulations  as  they  may  prescribe, 
to  the  investigation  of  the  claims  which  shall  be  presented  to  them  by 
the  Government  of  the  United  States,  and  shall  examine  and  decide 
upon  them  in  such  order  and  manner  as  they  may  think  proper,  but 
upon  such  evidence  or  information  only  as  shall  be  furnished  by  or  on 
behalf  of  the  Governments  of  Great  Britain  and  of  the  United  States, 
respectively.  They  shall  be  bound  to  hear  on  each  separate  clain),  if  re- 
quired, one  person  on  behalf  of  each  Government,  as  counsel  or  agent. 
A  majority  of  the  Assessors  in  each  case  shall  be  sufticient  for  a  decision. 

The  decision  of  the  Assessors  shall  be  given  upon  each  claim  in  writing, 
and  sliall  be  signed  by  them  respectively  and  dated. 

Every  claim  shall  be  presented  to  the  Assessors  within  six  months 
from  tlu;  day  of  their  first  meeting,  but  they  may,  for  good  cause  shown, 
extend  tlie  time  for  the  presentation  of  any  claim  to  a  further  period  not 
exceeding  three  months. 

Tlie  Assessors  shall  report  to  each  Government,  at  or  before  the  expi- 
ration of  one  year  from  the  date  of  their  ttrst  meeting,  the  amount  of 
claims  de(;i<led  by  them  up  to  the  date  of  such  report;  if  further  claims 
then  vemaiu  undecided,  they  shall  make  a  further  report  at  or  oefore 
the  expiration  of  two  years  from  tlie  date  of  such  lirst  meeting ;  and  in 
case  any  claims  remaiu  undetermined  at  that  time,  they  shall  make  a 
tiiial  re[)()rt  within  a  further  period  of  six  months. 

The  report  or  reports  shall  be  made  in  duplicate,  and  one  copy  thereof 
shall  be  di^livered  to  the  Secretary  of  State  of  the  United  States;  and 
one  copy  thereof  to  the  llepresentative  of  Her  Britannic  Majesty  at 
Washington. 

All  sums  of  money  which  may  be  awarded  under  this  Article  shall 
be  payable  at  Washington,  in  coin,  within  twelve  months  after  the 
delivery  of  each  report. 

The  Board  of  Assessors  may  employ  such  clerks  as  they  shall  think 
necessary. 

The  expenses  of  the  Board  of  Assessors  shall  be  borne  equally  by  tno 
two  Governments,  and  paid  from  time  to  time,  as  may  be  found  exi)edi- 
ent,  on  the  production  of  accounts  certified  by  the  Board.  The  remu- 
neration of  the  Assessors  shall  also  be  paid  by  the  two  Governments  in 
equal  moieties  in  a  similar  manner. 


Article  XI. 


The  High  Contracting  Parties  engage  to  consider  the  result  of  the 
proceedings  of  the  Tribunal  of  Arbitration  and  of  the  Board  of  Assessors, 
should  such  Board  be  appointed,  as  a  full,  perfect,  and  final  settlement 
of  all  the  claims  hereinbefore  referred  to ;  and  further  engage  that 
every  such  claim,  whether  the  same  may  or  may  not  have  been  presented 


3tntos,  one 
r,  and  one 
^asliiiigtou 
bappiMiitig 
ich  the  ori- 

■  Assessors 
\i\r  sittings 
duill  sever- 
y  and  eare- 
l  according 
diall  forth- 

•  prescribe, 
to  them  by 
and  decide 
|)ro[)er,  but 
?d  bv  or  on 
ted  States, 
clain),  if  re- 
i\  or  agent, 
•a  decision. 
[  in  writing, 

six  montlis 
use  shown, 

•  period  not 

•e  the  expi- 
amonnt  of 
ther  claims 
t  or  before 
ig ;  and  in 
all  make  a 

>l>.v  thereof 
states;  and 
Majesty  at 

rticle  shall 
after  the 

hall  think 

illy  by  tuo 
nd  exi)edi- 
The  remu- 
rnmeuts  in 


GENERAL    APPENDIX. 


415 


lilt  of  the 

Assessors, 
settlement 
gage  that 
presented 


to  the  notice  of,  made,  preferred,  or  laid  before  the  Tribunal  or  Board, 
shall,  from  and  after  the  conclusion  of  the  proceedings  of  the  Tribumil 
or  Hoanl,  be  considered  and  treated  as  Anally  settled,  barred,  and  thence- 
forth inadmissible. 

Article  XII. 

The  High  Contracting  Parties  agree  that  all  claims  on  the  part  of 
corporations,  companies,  or  private  individuals,  citizens  of  the  United 
States,  upon  the  Cxovernmeut  of  Her  Kritannic  Majesty,  arising  out  of 
acts  committed  against  the  persons  or  property  of  citizens  of  the  United 
States  during  the  period  between  the  thirteenth  of  Ai)ril,  eighteen  hun- 
dred and  sixty-one,  and  the  ninth  of  April,  eighteen  hundn'd  and  sixty- 
tive,  inclusive,  not  being  claims  growing  out  of  the  acts  of  the  vessels 
referred  to  in  Article  I  of  this  Treaty,  and  all  claims,  with  the  like  ex- 
ception, on  the  iiart  of  corporations,  companies,  or  private  individuals, 
subjects  of  Her  Britannic  Majesty,  upon  the  Government  of  the  United 
States,  arising  out  of  acts  committetl  against  the  persons  or  property 
of  subjects  of  Her  Britannic  Majesty  during  the  sanie  period,  which 
may  have  been  presented  to  eitlier  Gov^ernment  for  its  interposition 
with  the  otiier,  and  which  yet  remain  unsettled,  as  well  as  any  other  such 
claims  which  may  be  presented  witlnn  the  time  specified  in  Article  XIV 
of  this  Treaty,  shall  be  referred  to  three  Commissioners,  to  be  appointed 
in  the  following  manner — that  is  to  say :  One  Commissioner  shall  be 
named  by  the  President  of  the  United  States,  one  by  Her  Britannic 
Majesty,  and  a  third  by  the  President  of  the  United  States  and  Her 
Biitannic  Majesty  conjointly;  and  in  case  the  third  Commissioner  shall 
not  have  been  so  named  witiiin  a  period  of  three  months  from  the  date 
of  the  exchange  of  the  ratitications  of  this  Treaty,  then  the  third  Com- 
missioner shall  be  named  by  tlie  Kepresentative  at  Washington  of  His 
Majesty  the  King  of  Spain.  In  case  of  the  death,  absence,  or  incapacity 
of  any  Commissioner,  or  in  the  eveni  of  any  Commissioner  omitting  or 
ceasing  to  act,  the  vacancy  shall  be  filled  in  the  manner  hereinbefore 
provided  for  making  the  original  appointment;  the  period  of  three 
months  in  case  of  such  substitution  being  calculated  from  the  date  of 
the  hapiiening  of  the  vacancy. 

The  (Jommissioners  so  named  shall  meet  at  Washington  at  the  earliest 
convenient  period  after  they  have  been  respectively  named;  and  sliall, 
before  proceeding  to  any  business,  make  and  subscribe  a  solemn  declara- 
tion that  they  will  impartially  and  carefully  examine  and  decide,  to  the 
best  of  their  judgment,  and  according  to  justice  and  equity,  all  such 
claims  as  shall  be  laid  before  them  on  the  part  of  the  Governments  of 
the  United  States  and  of  Her  Britannic  Majesty,  respectively  ;  and  such 
declaration  shall  be  entered  on  the  record  of  their  proceedings. 

Article  XIII. 

The  Commissioners  shall  then  forthwith  proceed  to  the  investigation 
of  the  claims  which  shall  be  presented  to  them.  They  shall  investigate 
and  decide  such  claims  in  such  order  and  such  manner  as  they  may 
think  proper,  but  upon  such  evidence  or  information  only  as  shall  be 
furnished  by  or  on  behalf  of  the  respective  Gavernments.  They 
shall  be  bound  to  receive  and  consider  all  written  documents  or  state- 
ments which  may  be  presented  to  them  by  or  on  behalf  of  the  respect- 
ive Governments  in  support  of,  or  in  ftuswer  to,  any  claim,  and  to  hear, 
if  required,  one  person  on  each  side,  on  behalf  of  each  Government,  as 


n 


416 


GENERAL    APPENDIX. 


h'v 


S' 


m 


m 


counsel  or  ajjent  for  such  Government,  on  e.acli  and  every  separate 
claim.  A  majority  of  the  CommissionerH  shall  be  suthcient  for  iin  award 
in  each  case.  The  awtird  shall  be  given  upon  each  claim  in  writing, 
and  shall  be  signed  by  tiie  Commissioners  assenting  to  it.  It  shall  be 
competent  for  each  Government  to  name  one  person  to  attend  the  Com- 
nussion«n'.s  as  its  agent  to  present  and  support  claims  on  its  behalf,  and 
to  answer  claims  made  upon  it,  and  to  represent  it  generally  in  all  mat- 
ters connected  with  the  investigation  and  decision  thereof. 

The  High  Contracting  Parties  hereby  engage  to  consider  the  decision 
of  the  Commissioners  as  absolutely  final  and  conclusive  upon  each  claim 
decided  upon  by  them,  and  to  give  full  effect  to  such  decisions  without 
any  objection,  evasion,  or  delay  whatsoever. 

Article  XIV. 

Every  claim  shall  be  presented  to  the  Commissioners  within  six 
months  from  the  day  of  their  first  meeting,  unless  in  any  case  where 
reasons  for  delay  shall  be  established  to  the  satisfaction  of  the  Connnis- 
sioners,  and  then,  and  in  any  such  case,  the  period  for  presenting  the 
claim  maybe  extended  by  them  to  anytime  not  exceeding  three  months 
longer. 

The  Commissioners  shall  be  bound  to  examine  and  decide  upon  every 
claim  within  two  years  from  the  day  of  their  first  meeting.  It  shall  be 
competent  for  the  Commissioners  to  decide  in  each  case  whether  any 
claim  has  or  has  not  been  duly  made,  preferred,  and  laid  before  them, 
either  wholly  or  to  any  and  what  extent,  according  to  the  true  intent 
and  meaning  of  this  Treaty. 

Article  XV. 

All  sums  of  money  which  may  be  awarded  by  the  Commissioners  on 
account  of  any  claim  shall  be  paid  by  the  one  Government  to  the  other, 
as  the  case  may  be,  within  twelve  months  after  the  date  of  the  final 
award,  without  interest,  and  without  any  deduction  save  as  specified  in 
Article  XVI  of  this  Treaty. 

Article  XVI. 

The  Commissioners  shall  keep  an  accurate  record,  and  correct  minutes 
or  notes  of  all  their  proceedings,  with  the  dates  thereof,  and  may  appoint 
and  employ  a  secretary,  and  any  other  necessary  officer  or  officers,  to 
assist  them  in  the  transaction  of  the  business  which  may  come  before 
them. 

Each  Government  shall  pay  its  own  Commissioner  and  agent  or  coun- 
sel. All  other  expenses  shall  be  defrayed  by  the  two  Governments  in 
equal  moieties. 

The  whole  expenses  of  the  Commission,  including  contingent  expenses, 
shall  be  defrayed  by  a  ratable  deduction  on  the  amount  of  the  sums 
awarded  by  the  Commissioners,  provided  always  that  such  deduction 
shall  not  exceed  the  rate  of  five  per  cent,  on  the  sums  so  awarded. 

♦  Article  XVII. 


The  High  Contracting  Parties  engage  to  consider  the  result  of  the 
proceedings  of  this  Commission  as  a  full,  perfect,  and  final  settlement  of 
all  such  claims  as  are  mentioned  in  Article  XII  of  this  Treaty  upon  either 


GENERAL   APPENDIX. 


417 


separate 
an  iiwurd 

I  writing, 
t  sliiiU  be 
the  Com- 
ihiiW,  and 

II  all  mat- 

3  decision 
ach  elaim 
8  without 


itliin  six 
Lse  where 
Connnis- 
snting  tlie 
se  months 

[ion  every 
t  shall  be 
ether  any 
ore  them, 
•ue  intent 


loners  on 
he  other, 
the  final 
ecifled  in 


minutes 
V  appoint 
licers,  to 
11  e  before 

or  coun- 
meuts  iu 

xpenaes, 
the  sums 
eduction 
ed. 


t  of  the 
ement  of 
an  either 


Government;  and  further  engage  that  every  such  claim,  whether  or  not 
the  same  may  have  been  presented  to  the  notice  of,  made,  preferred,  or^ 
laid  before  the  said  Commission,  shall,  from  and  after  the  conclusion  of 
the  proceedings  of  the  said  Commission,  be  considered  and  treated  as 
finally  settled,  barred,  and  thenceforth  inadmissible. 

Article  XVIIl. 

It  is  agreed  by  the  High  Contracting  Parties  that,  in  addition  to  the 
liberty  secured  to  the  United  States  fishermen  by  the  Convention  between 
the  United  States  and  Great  Britain,  signed  at  London  on  the  20th  day 
of  October,  1818,  of  taking,  curing,  and  drj'ing  fish  on  certain  coasts  of 
the  British  North  American  Colonies  therein  defined,  the  inhabitants  of 
the  United  States  shall  have,  in  common  with  the  subjects  of  Her  Brit- 
annic Majesty,  the  liberty,  for  the  term  of  years  mentioned  in  Article 
XXXIII  of  this  Treaty,  to  take  fish  of  every  kind,  except  shell-fish,  on 
the  sea-coasts  and  shores,  and  in  the  bays,  harbors,  and  creeks,  of  the 
Provinces  of  Quebec,  Nova  Scotia,  and  New  Brunswick,  and  the  Colony 
of  Prince  Edward's  Island,  and  of  the  several  islands  thereunto  adja- 
cent, without  being  restricted  to  any  distance  from  the  shore,  with  per- 
mission to  land  upon  the  said  coasts  and  shores  and  islands,  and  also 
upon  the  Magdalen  Islands,  for  the  purpose  of  drying  their  nets  and 
curing  their  fish ;  provided  that,  in  so  doing,  they  do  not  interfere  with 
the  rights  of  private  property,  or  with  British  fishermen,  in  the  peace- 
able use  of  any  part  of  the  said  coasts  in  their  occupancy  for  the  same 
purpose. 

It  is  imderstood  that  the  above-mentioned  liberty  applies  solely  to  the 
sea-fishery,  and  that  the  salmon  and  shad  fisheries,  and  all  other  fish- 
eries in  rivers  and  the  mouths  of  rivers  are  hereby  reserved  exclusively 
for  British  fishermen. 

Article  XIX. 

It  is  agreed  by  the  High  Contracting  Parties  that  British  subjects 
shall  have,  in  common  with  the  citizens  of  the  United  States,  the  lib- 
erty, for  the  term  of  years  mentioned  in  Article  XXXIII  of  this  Treaty, 
to  take  fish  of  every  kind,  except  shell-fish,  on  the  eastern  sea-coasts 
and  shores  of  the  United  States  north  of  the  thirty-ninth  parallel  of 
north  latitude,  and  on  the  shores  of  the  several  islands  thereunto  adja- 
cent, and  in  the  bays,  harbors,  and  creeks  of  the  said  sea-coasts  and 
shores  of  the  United  States  and  of  the  said  islands,  without  being 
restricted  to  any  distance  from  the  shore,  with  permission  to  land  upon 
the  said  coasts  of  the  United  States  and  of  the  islands  aforesaid,  for 
the  purpose  of  drying  their  nets  and  curing  their  fish ;  provided  that, 
in  so  doing,  they  do  not  interfere  with  the  rights  of  private  property,  or 
with  the  fishermen  of  the  United  States  in  the  peaceable  use  of  any 
part  of  the  said  coasts  in  their  occupancy  for  the  same  purpose. 

It  is  understood  that  the  above-mentioned  liberty  applies  solely  to  the 
sea-fishery,  and  that  salmon  and  shad  fisheries,  and  all  other  fisheries  in 
rivers  and  months  of  rivers  are  hereby  reserved  exclusively  for  fisher- 
men of  the  United  States. 

Article  XX. 

It  is  agreed  that  the  places  designated  by  the  Commissioners  ap- 
pointed under  the  first  Article  of  the  treaty  between  the  United  States 
and  Great  Britain,  concluded  at  Washington  on  the  5th  of  June,  1864, 
27  H 


418 


GENERAL    APPENDIX. 


Pf 


upon  the  coasts  of  Her  Britannic  Majesty's  Dominions  and  tlie  United 
States,  as  places  reserved  from  the  common  riglit  of  flshin;?  under  that 
Treaty,  shall  be  regarded  as  in  like  manner  reserved  from  the  common 
right  ot  ilshing  under  the  preceding  Articles.  In  case  any  question  should 
arise  between  the  Governments  of  the  United  States  and  of  Her  Britannic 
Majesty  as  to  the  common  right  of  fishing  in  places  not  thus  designated 
as  reserved,  it  is  agreed  that  a  Commission  shall  be  appointed  to  desig- 
nate such  places,  and  shall  be  constituted  in  the  same  manner,  ana  have 
the  same  powers,  duties,  and  authority  as  the  Commission  appointed 
under  the  said  first  Article  of  the  Treaty  of  the  5th  of  June,  1854. 

Article  XXI. 

It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  XXXIII 
of  this  Treaty,  fish-oil  and  fish  of  all  kinds,  (except  fish  of  the  Inland 
lakes,  and  of  the  rivers  falling  into  them,  and  except  fish  preserved  in 
oil,)  being  the  produce  of  the  fisheries  of  the  United  States,  or  of  the 
Dominion  of  Canada,  or  of  Prince  Edward's  Island,  shall  be  admitted 
into  each  country,  respectively,  free  of  duty. 

Article  XXII. 


w 


Inasmuch  as  it  is  asserted  by  the  Government  of  Her  Britannic  Maj- 
esty that  the  privileges  accorded  to  the  citizens  of  the  United  States 
under  Article  XVIII  of  this  Treaty  are  of  greater  value  than  those 
accorded  by  Articles  XIX  and  XXI  of  this  Treaty  to  the  subjects  of 
Her  Britannic  Majesty,  and  this  assertion  is  not  admitted  by  the 
Government  of  the  United  States,  it  is  further  agreed  that  Commis- 
sioners shall  be  appointed  to  determine,  having  regard  to  the  privileges 
accorded  by  the  United  States  to  the  subjects  of  Her  Britannic  Majesty, 
as  stated  in  Articles  XIX  and  XXI  of  this  Treaty,  the  amount  of  any 
-compensation  which,  in  their  opinion,  ought  to  be  paid  by  the  Govern- 
ment of  the  United  States  to  the  Government  of  Her  Britannic  Majesty 
in  return  for  the  privileges  accorded  to  the  citizens  of  the  United  States 
under  Article  XVIII  of  this  Treaty ;  and  that  any  sum  of  money  which 
the  said  Commissioners  may  so  award  shall  be  paid  by  the  United  States 
Government,  in  a  gross  sum,  within  twelve  months  after  such  award 
shall  have  been  given. 

Article  XXIII. 

The  Commissioners  referred  to  in  the  preceding  Article  shall  be 
appointed  in  the  following  manner — that  is  to  say :  One  Commissioner 
shall  be  named  by  the  President  of  the  United  States,  one  by  Her 
Britannic  Majesty,  and  a  third  by  the  President  of  the  United  States 
and  Her  Britannic  Majesty  conjointly^  and  in  case  the  third  Commis- 
sioner shall  not  have  been  so  named  within  a  period  of  throe  months 
from  the  date  when  this  article  shall  take  effect,  then  the  third  Commis- 
sioner shall  be  named  by  the  Bepresentative  at  London  of  His  Majesty 
the  Emperor  of  Austria  and  King  of  Hungary.  In  case  of  the  death, 
absence,  or  incapacity  of  any  Commissioner,  or  in  the  event  of  any  Com- 
missioner omitting  or  ceasing  to  act,  the  vacancy  shall  be  filled  in  the 
manner  hereinbefore  provided  for  making  the  original  appointment,  the 
period  of  three  months  in  case  of  such  substfitution  being  calculated 
from  the  date  of  the  happening  of  the  vacancy. 

The  Commissioners  s«>  named  shall  meet  in  the  City  of  Halifax,  in 


GEXKRAL    APPENDIX. 


419 


the  Proviiico  of  Nova  Scotia,  at  the  earliest  convonieiit  period  after  tlicy 
liavo  been  respectively  naineil,  aiul  shall,  before  proceeUiiiff  to  any  busi- 
ness, make  and  subscribe  a  solemn  declaration  that  they  will  impartially 
and  carefully  examine  and  decide  the  matters  referred  to  them  to  the 
best  of  their  jud^'ment,  and  according  to  justice  and  equity ;  and  such 
declaration  shall  be  entered  on  the  record  of  their  proceedings. 

Each  of  the  High  Contracting  Parties  shall  also  name  one  person  to 
attend  the  (Joramission  as  its  agent,  to  represent  it  generally  in  all  mat- 
ters connected  with  the  Commission. 


Article  XXIV. 

The  proceedings  shall  be  conducted  in  such  order  as  the  Commission- 
ers appointed  under  Articles  XXII  and  XXIII  of  this  Treaty  shall  de- 
termine. They  shall  bo  bound  to  receive  such  oral  or  written  testimony 
as  either  Government  may  present.  If  either  Party  shall  offer  oral  tes- 
timony, the  other  Party  shall  have  the  right  of  cross-examination, 
under  such  rules  as  the  Commissioners  shall  prescribe. 

If  in  the  case  submitted  to  the  Commissioners  either  Party  shall  have 
specified  or  alluded  to  any  report  or  document  in  its  own  exclusive  pos- 
session, without  annexing  a  copy,  such  Party  shall  be  bound,  if  the 
other  Party  thinks  proper  to  apply  for  it,  to  furnish  that  Party  with  a 
copy  thereof;  and  either  Party  may  call  upon  the  other,  through  the 
Commissioners,  to  produce  the  originals  or  certified  copies  of  any  papers 
adduced  as  eviden(!e,  giving  in  each  instance  such  reasonable  notice  as 
the  Commissioners  may  require. 

The  case  on  either  side  shall  be  closed  within  a  period  of  six  months 
from  the  date  of  the  organization  of  the  Commission,  and  the  Commis- 
sioners sh.'iU  be  requested  to  give  their  award  as  soon  as  possible  there- 
after. The  aforesaid  period  of  six  months  may  be  extended  for  three 
months  in  case  of  a  vacancy  occurring  among  the  Commissioners  niuler 
the  circumstauces  contemplated  in  Article  XXIII  of  this  Treaty. 

Article  XXV. 

The  Commissioners  shall  keep  an  accurate  record  and  correct  minute 
or  notes  of  all  their  proceedings,  with  the  dates  thereof,  and  may  ap- 
point and  employ  a  secretary  and  any  other  necessary  officer  or  officers 
to  assist  them  in  the  transaction  of  the  business  which  may  come  before 
them. 

Each  of  the  High  Contracting  Parties  shall  pay  its  own  Commissioner 
and  agent  or  counsel;  all  other  expense*?  shall  be  defrayed  by  the  two 
Governments  in  equal  moieties. 

Article  XXVI. 

The  navigation  of  the  river  St.  Lawrence,  ascending  and  descending, 
from  the  forty-flfth  parallel  of  north  latitude,  where  it  ceases  to  form  the 
boundary  between  the  two  countries,  from,  to,  and  into  the  sea,  shall  for- 
ever remain  free  and  open  for  the  purposes  of  commerce  to  the  citizens 
of  the  United  States,  subject  to  any  laws  and-  regulations  of  Great 
Britain,  or  of  the  Dominion  of  Canada,  not  inconsistent  with  such  privi- 
lege of  free  navigation. 

The  navigation  of  the  rivers  Yukon,  Porcupine,  and  Stikine,  ascending 
and  descending,  from,  to,  and  into  the  sea,  shall  forever  remain  free  and 
open  for  the  purposes  of  commerce  to  the  subjects  of  Her  Britannic 


420 


GENERAL    APPENDIX. 


»^:r 


Majesty  and  to  the  citizens  of  the  United  States,  subject  to  any  laws 
and  regulations  of  either  country  within  its  own  territory,  not  incon- 
sistent with  such  privilege  of  free  navigation. 

Article  XXVII. 

The  Government  of  Her  Britannic  Mtyesty  engages  to  urge  upon  the 
l^overnmont  of  the  Dominion  of  Canada  to  secure  to  the  citizens  of  the 
United  States  the  use  of  the  Welland,  St.  Lawrence,  and  other  canals 
in  the  Dominion  on  terms  of  equality  with  the  inhabitants  of  the  Do- 
minion ;  and  the  Government  of  the  United  States  engages  that  the 
subjects  of  Her  Britannic  Majesty  shall  enjoy  the  use  of  the  St.  Clair 
Flats  Canal  on  terms  of  equality  with  the  inhabitants  of  the  United 
States ;  and  further  engages  to  urge  upon  the  State  Governments  to 
secure  to  the  subjects  of  Her  Britannic  Majesty  the  use  of  the  several 
State  canals  connected  with  the  navigation  of  the  lakes  or  rivers  tra- 
versed by  or  contiguous  to  the  boundary-line  between  the  possessions 
of  the  High  Contracting  Parties,  on  terms  of  equality  with  the  inhab- 
itants of  the  United  States. 


i:l 


Article  XXVIII. 

The  navigation  of  Lake  Michigan  shall  also,  for  the  term  of  years 
mentioned  in  Article  XXXIII  of  this  Treaty,  be  free  and  open  for  the 
purposes  of  commerce  to  the  subjects  of  Her  Britannic  Majesty,  subject 
to  any  laws  and  regulations  of  the  United  States  or  of  the  States  bor- 
dering thereon  not  inconsistent  with  such  privilege  of  free  navigation 

Article  XXIX. 


VJ, 


fi 


It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  XXXIII 
of  this  Treaty,  goods,  wares,  or  merchandise  arriving  at  the  ports  of 
New  York,  Boston,  and  Portland,  and  any  other  ports  in  the  United 
States  which  have  been  or  may  irom  time  to  time  be  specially  desig- 
nated by  the  President  of  the  United  States,  and  destined  for  Her 
Britannic  Majesty's  Possessions  in  North  America,  may  be  entered  at 
the  proper  custom-house  and  conveyed  in  transit,  without  the  payment 
of  duties,  through  the  territory  of  the  United  States,  under  such  rules, 
regulations,  and  conditions  for  the  protection  of  the  revenue  as  the  Gov- 
ernment of  the  United  States  may  from  time  to  time  prescribe ;  and, 
under  like  rules,  regulations,  and  conditions,  goods,  wares,  or  merchan- 
dise may  be  conveyed  in  transit,  without  the  payment  of  duties,  from 
such  Possessions  through  the  territory  of  the  United  States  for  exjiort 
from  the  said  ports  of  the  United  States. 

It  is  further  agreed  that,  for  the  like  pei'iod,  goods,  wares,  or  merchan- 
dise arriving  at  any  of  the  ports  of  Her  Britannic  Majesty's  Possessions 
in  North  America  and  destined  for  the  United  States  may  be  entered  at 
the  proper  custom-house  and  conveyed  in  transit,  without  the  payment 
of  duties,  through  the  said  Possessions,  under  such  rales  and  regula- 
tions, ana  conditions  for  the  protection  of  the  revenue,  as  the  Govern- 
ments of  the  said  Possessions  may  from  time  to  time  prescribe ;  and, 
under  like  rules,  regulations,  and  conditions,  goods,  wares,  or  merchan- 
dise may  be  conveyed  in  transit,  without  payment  of  duties,  from  the 
United  States  through  the  said  Possessions  to  other  places  in  tlie  United 
States,  or  for  export  from  ports  in  the  said  Possessions. 


GENERAL   APPENDIX. 


421 


)t  iiicon- 


upoii  tlie 
us  of  the 
er  cauals 
'  the  Do. 
that  the 
St.  Clair 
e  United 
imeDts  to 
e  several 
ivers  tra- 
sscssioiis 
10  iuhab- 


of  years 
>u  for  the 
',  subject 
ates  bor- 
igatio'' 


XXXIII 

ports  of 

United 

lly  desig- 

Ibr  Her 
utered  at 
payment 
ich  rules, 

the  Gov- 
be;  and, 
inerchan- 
;ies,  from 
)r  export 

mercliau" 
ssessions 
ntered  at 
payment 
d  regula- 
Goveru- 
be ;  and, 
nerchan- 
from  the 
e  United 


Article  XXX. 

It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  XXXIII 
of  this  Treaty,  subjects  of  Her  Britannic  Majesty  may  carry  in  British 
vessels,  without  payment  of  duty,  goods,  wares,  or  merchandise  from 
one  port  or  place  within  the  territory  of  the  United  States  npon  the  St. 
Lawrence,  the  Great  Lakes,  and  the  rivers  connecting  the  same,  to 
another  port  or  place  within  the  territory  of  the  United  States  as  afore- 
said :  Provided,  That  a  portion  of  such  transportation  is  made  through 
the  Dominion  of  Canada  by  land-carriage  and  in  bond,  under  such  rules 
and  regulations  as  may  be  agreed  upon  between  the  Government  of 
Her  Britannic  Majesty  and  the  Government  of  the  United  States. 

Citizens  of  the  United  States  may  for  the  like  period  carry  in  United 
States  vessels,  without  payment  of  duty,  goods,  M'ares,  or  merchandise 
from  one  port  or  place  \tithin  the  possessions  of  Her  Britannic  Majesty 
in  North'  America,  to  another  port  or  place  within  said  possessions : 
Provided,  That  a  portion  of  such  transportation  is  made  through  the 
territory  of  the  United  States  by  land-carriage  and  in  bond,  under  such 
rules  and  regulations  as  may  be  agreed  upon  between  the  Government 
of  the  United  States  and  the  Government  of  her  Britannic  Majesty. 

The  Government  of  the  United  States  further  engages  not  to  impose 
any  export  duties  on  goods,  wares,  or  merchandise  carried  under  this 
article  through  the  territory  of  the  United  States ;  and  Her  Majesty's 
Government  engages  to  urge  the  Parliament  of  the  Dominion  of  Canada 
and  the  Legislatures  of  the  other  colonies  not  to  impose  any  export  duties 
on  goods,  wares,  or  merchandise  carried  i' ider  this  article;  and  the 
Government  of  the  United  States  may,  in  case  such  export  duties  are 
imposed  by  the  Dominion  of  Canada,  suspend,  during  the  period  that 
such  duties  are  imposed,  the  right  of  carrying  granted  under  this  article 
in  favor  of  the  subjects  of  Her  Britannic  Majesty. 

The  Government  of  the  United  States  may  suspend  the  right  of  carry- 
ing granted  in  favor  of  the  subjects  of  Her  Britannic  Majesty  under  this 
article,  in  case  the  Dominion  of  Canada  should  at  any  time  deprive  the 
citizens  of  the  United  States  of  the  use  of  the  cauals  in  the  said  Dominion 
on  terms  of  equality  with  the  inhabitants  of  the  Dominion,  as  provided 
in  Article  XXVII. 

Article  XXXI. 

The  Government  of  Her  Britannic  Majesty  further  engages  to  urge 
upon  the  Parliament  of  the  Dominion  of  Canada  and  the  Legislature  of 
New  Brunswick,  that  no  export  duty,  or  other  duty,  shall  be  levied  on 
lumber  or  timber  of  any  kind  cut  ou  that  portion  of  the  American  ter- 
ritory in  the  State  of  Maine  watered  by  the  river  St.  John  and  its  tribu- 
■^taries;  and  floated  down  that  river  to  the  sea,  when  the  same  is  shipped 
to  the  United  States  from  the  Province  of  New  Brunswick.  And,  in 
case  any  such  export  or>pther  duty  continues  to  be  levied  after  the  expi- 
ration of  one  year  from  the  date  of  the  exchange  of  the  ratifications  of 
this  Treaty,  it  is  agreed  that  the  Government  of  the  United  States  may 
suspend  the  right  of  carrying  hereinbefore  granted  under  Article  XXX 
of  this  Treaty  for  such  period  as  such  export  or  other  duty  may  be 
levied. 

Article  XXX  IL 

It  is  further  agreed  that  the  provisions  and  stipulations  of  Articles 
XVIII  to  XXV  of  this  Treaty,  inclusive,  shall  extend  to  the  Colony  of 


422 


GENERAL   APPENDIX. 


Newfoundland,  so  far  as  they  are  applicable.  But  if  the  Imperial  Par- 
liament, the  Legislature  of  Newfoundland,  or  the  Congress  of  the  United 
States,  shall  not  embrace  the  Colony  of  Newfoundland  in  their  laws  en- 
acted for  carrying  the  foregoing  Articles  into  effect,  then  this  Article 
shall  be  of  no  effect;  but  the  omission  to  make  provision  by  law  to  give 
it  effecL,  by  either  of  the  legislative  bodies  aforesaid,  shall  not  in  any 
way  impair  any  other  Articles  of  this  Treaty. 

Article  XXXIII. 


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inf. 


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The  foregoing  Articles  XVIII  to  XV,  inclusive,  and  Article  XXX 
of  this  Treaty,  shall  take  effect  as  soon  as  the  laws  required  to  carry 
them  into  operation  shall  ha'^e  been  passed  by  the  Imperial  Parliament 
of  Great  Britain,  by  the  Parliament  of  Canada,  and  by  the  Legislature 
of  Prince  Edward's  Island  on  the  one  hand,  and  by  the  Congress  of  the 
United  States  on  the  other.  Such  assent  having  been  giveii,  the  said 
Articles  shall  remain  in  force  for  the  period  of  ten  years  from  the  date 
at  which  they  may  como  into  operation  ;  and  further  until  the  expira- 
tion of  two  years  after  either  of  the  High  Contractirig  Parties  shall  have 
given  notice  to  the  other  of  its  wish  to  terminate  the  same ;  each  of  the 
High  Contracting  Parties  being  at  liberty  to  give  such  notice  to  the 
other  at  the  end  of  the  said  period  of  ten  years  or  at  any  time  afterward. 

Article  XXXIV. 

Whereas  it  was  stipulated  by  Article  I  of  the  Treaty  concluded  at 
Washington  on  the  loth  of  June,  1846,  between  the  United  States  and 
Her  Britannic  Majesty,  that  the  line  of  boundary  between  the  territories 
of  the  United  States  and  those  of  Her  Britannic  Majesty,  from  the  point 
ou  the  forty-ninth  parallel  of  north  latitude  up  to  which  it  had  already 
been  ascertained,  should  be  continued  westward  along  the  said  parallel 
of  north  latitude  "  to  the  middle  of  the  channel  which  separates  the  con- 
tinent from  Vancouver's  Island,  and  thence  southerly  through  the  mid- 
dle of  the  said  channel  and  of  Fuca  Straits,  to  the  Pacific  Ocean ;"  and 
whereas  the  Commissioners  appointed  by  the  two  High  Contracting 
Parties  to  determine  that  portion  of  the  boundary  which  runs  south- 
erly through  the  middle  of  the  channel  aforesaid,  were  unable  to  agree 
upon  the  same ;  and  whereas  the  Government  of  Her  Britannic  Majesty 
claims  that  such  boundary  line  should,  under  the  terms  of  the  Treaty  above 
recited,  be  run  through  the  llosario  Straits,  and  the  Government  of  the 
United  States  claims  that  it  should  be  run  through  the  Canal  de  Haro, 
it  is  agreed  that  the  respective  claims  of  the  Government  of  the  United 
States  and  of  the  Government  of  Her  Britannic  Majesty  shall  be  sub- 
mitted to  the  arbitration  and  award  of  His  Majesty  the  Kmperor  of 
Germany,  who,  having  regard  to  the  above-mentioned  Article  of  the 
said  Treaty,  shall  decide  thereupon,  finally  and  without  appeal,  which 
of  those  claims  is  most  in  accordance  with  the  true  interpretation  of  the 
Treaty  of  June  15, 184G. 

Article  XXXV. 

The  award  of  His  Majesty  the  Emperor  of  Germany  shall  be  con- 
sidered as  absolutely  final  and  conclusive ;  and  full  effect  shall  be  given 
to  such  award  without  any  objection,  evasion,  or  delay  whatsoever. 
Such  decision  shall  be  given  in  writing  and  dated ;  it  shall  be  in  what- 
soever form  His  Majesty  may  choose  to  adopt;  it  shall  be  delivered  to 


GENERAL    APPENDIX. 


423 


eriiil  Par- 
le  United 
'  laws  en- 
la  Article 
w  to  give 
ot  in  any 


cle  XXX 

[  to  carry 
firliameut 
!gislature 
ess  of  the 
,  the  said 
I  the  date 
le  expira- 
jhall  have 
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ifterward. 


eluded  at 
tates  and 
;erritories 
the  point 
1  already 
i  parallel 
8  the  con- 
the  mid- 
an ;"  and 
ntracting 
as  south- 
to  agree 
i  Majesty 
>ty  above 
nt  of  the 
de  Haro, 
10  United 
I  be  sub- 
nperor  of 
3le  of  the 
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ion  of  the 


be  con- 
be  given 

latsoever. 
in  what- 

livered  to 


the  Representatives  or  other  i»ublic  agents  of  the  United  States  and  of 
Great  Britain,  respectivelj",  who  may  be  actually  at  Berlin,  and  nhall 
bo  considered  as  operative  from  tlie  day  of  the  date  of  the  delivery 
thereof. 

*        Article  XXXVI. 

The  written  or  printed  case  of  p<iA  of  the  two  Tarries,  accompanied 
by  the  evidence  offered  in  support  of  the  same,  shall  bo  laid  before  Ilis 
Majesty  the  Emperor  of  Germany  within  six  months  from  the  date  of 
the  exchange  of  the  ratifications  of  this  Treaty,  and  a  copy  of  such  case 
and  evidence  shall  be  communicated  by  each  Party  to  the  other,  through 
their  respective  Representatives  at  Berlin, 

The  High  Contracting  Parties  may  include  in  the  evidence  to  be  con- 
sidered by  the  Arbitrator  such  docum*.  nts,  ofiicial  correspondence,  and 
other  official  or  public  statements  bearing  on  the  subject  of  the  reference 
as  they  may  consider  necessary  to  the  support  of  their  respective  vjases. 

After  the  written  or  printed  case  shall  have  been  communicated  by 
each  Party  to  the  other,  each  Party  shall  have  the  power  of  drawing  up 
and  laying  before  the  Arbitrator  a  second  and  definitive  statement,  if  it 
think  lit  to  do  so,  in  reply  to  the  case  of  the  other  Party  so  communi- 
cated, which  definitive  statement  shall  be  so  Laid  before  the  Arbitrator, 
and  also  be  mutrally  communicated  in  the  same  manner  as  aforesaid, 
by  each  Party  to  the  other,  within  six  months  from  the  date  of  laying 
the  first  statement  of  the  case  before  the  Arbitrator. 

Article  XXXVII. 

If,  in  the  case  submitted  to  the  Arbitrator,  either  Party^  shall  specify 
or  allude  to  any  report  or  document  in  its  own  exclusive  possession 
without  annexing  a  copy,  such  Party  shall  be  bound,  if  the  other  Party 
thinks  proper  to  apply  for  it,  to  furnish  that  Party  with  a  copy  thereof, 
and  either  Party  may  call  upon  the  other,  through  the  Arbitrator,  to 
produce  the  originals  or  certified  copies  of  any  papers  adduced  as  evi- 
dence, giving  in  each  instant  such  reasonable  notice  as  the  Arbitrator 
may  require.  And  if  the  Arbitrator  should  desire  further  elucidation  or 
evidence  with  regard  to  any  point  contained  in  the  statements  laid  be- 
fore him,  ho  shall  be  at  liberty  to  require  it  from  either  Party,  and  he 
shall  be  at  liberty  to  hear  one  counsel  or  agent  for  each  Party,  in  rela- 
tion to  any  matter,  and  at  such  time,  and  in  such  manner,  as  he  may 
think  fit. 

Article  XXXVIII. 

tlTho  Representatives  or  other  public  Age  its  of  the  United  States 
and  of  Great  Britain  at  Berlin  respectivelv  shall  be  considered  as  the 
agents  of  their  respective  Governments  to  conduct  their  cases  before 
the  Arbitrator,  who  shall  be  requested  to  .address  all  his  communica- 
tions, and  give  all  his  notices  to  such  Representatives  or  other  public 
Agents,  who  shall  represent  their  respective  Governments,  generally, 
in  all  matters  connected  v/ith  the  arbitration. 

Article  XXXIX. 

It  shall  bo  competent  to  the  Aibitrator  to  proceed  in  the  said  arbitra- 
tion, and  all  matters  relating  thereto,  as  and  when  he  shall  see  fit,  either 


424 


GENERAL   APPENDIX. 


in  person,  or  by  a  person  or  persons  named  by  him  for  that  purpose, 
either  in  the  presence  or  absence  of  either  or  both  agents,  and  either 
orally  or  by  written  discussion  or  otherwise. 

Article  XL. 

The  Arbitrator  may,  if  he  think  fit,  appoint  a  secretary,  or.clerk,  for 
the  purposes  of  the  proposed  arbitration,  at  such  rate  of  remuneration 
as  he  shall  think  proper.  This,  and  all  other  expenses  of  and  connected 
with  the  said  arbitration,  shall  be  provided  for  as  hereinafter  stipulated. 

Article  XLI. 


The  Arbitrator  shall  be  requested  to  deliver,  together  with  his  award^ 
an  account  of  all  the  costs  and  expenses  which  he  may  have  been  put 
to  in  relation  to  this  matter,  which  shall  forthwith  be  repaid  by  the  two 
Governments  in  equal  moieties. 

Article  XLII. 

The  Arbitrator  shall  be  requested  to  give  his  award  in  writing  as. 
early  as  convenient  after  the  whole  case  on  each  side  shall  have  been 
laid  before  him,  and  to  deliver  one  copy  thereof  to  each  of  the  said 
agents.  ^ 

Article  XLIII. 

The  present  Treaty  shall  be  duly  ratified  by  the  President  of  the 
United  States  of  America,  by  and  with  the  advice  and  consent  of  the 
Senate  thereof,  and  by  her  Britannic  Majesty,  and  the  ratifications  shall 
be  exchanged  either  at  Washington  or  at  London  within  six  montb» 
from  the  date  hereof,  or  earlier  if  possible. 

In  faith  whereof  we,  the  respective  Plenipotentaries,  have  signed 
this  Treaty  and  have  hereunto  affixed  our  seals. 

Done  in  duplicate  at  Washington  the  eighth  day  of  May,  in  the  year 
of  our  Loru  one  thousand  eight  hundred  and  seventy -one.  ' 

HAMILTON  FISH. 

ROBERT  O.  SCHBNCK. 

SAMUEL  NELSON. 

BBENEZBR  ROCKWOOD  HOAR. 

GEO.  H.  WILLIAMS. 

Db  grey  &  RIPON. 

STAFFORD  H.  NORTHCOTE. 

EDWARD  THORNTON. 

JOHN  A.  MACDONALD. 

MOUNT  AGUE  BERNARD. 


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s. 

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s. 

L. 

s. 

L. 

s. 

L. 
L. 

s. 
s. 

L. 

s. 

L. 

s. 

